WT/DS539/R/Add.1  
 
21 January 2021  
(21-0620) Page: 1/74 
  Original: English  
 
  
UNITED STATES – ANTI -DUMPING AND COUNTERVAILING DUTIES ON 
CERTAIN PRODUCTS AND THE USE OF FACTS AVAILABLE  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS539/R . 
 
_______________  
 
 
 
 
  WT/DS539/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on B usiness Confidential Information  11 
Annex A -3 Preliminary Ruling of the Panel  13 
Annex  A-4 Interim Review  15 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Korea  28 
Annex  B-2 Integrated executive summary of the arguments of the United States  41 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  56 
Annex  C-2 Integrated executive summary of the arguments of Canada  58 
Annex  C-3 Integrated executive summary of the arguments of the European Union  61 
Annex C -4 Integrated executive summary of the arguments of  Japan  64 
Annex C -5 Integrated executive summary of the arguments of  Mexico  69 
Annex C -6 Integrated executive summary of the arguments of  Norway  72 
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on B usiness Confidential Information  11 
Annex A -3 Preliminary Ruling of the Panel  13 
Annex  A-4 Interim Review  15 
 
 WT/DS539/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 13 February 2019  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ( "DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures, as well as any additional 
working procedures, as necessary, after consultation with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) Nothing in the DSU or in these Workin g Procedures shall preclude a party or third party 
from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) In the event that business confidential information ( "BCI") is submitted, the parties and 
third parties shall treat such information in accord ance with the procedures set out in the 
Additional Working Procedures of the Panel Concerning Business Confidential Information.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written subm ission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordanc e with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that t he Panel should make a ruling before the issuance 
of the Report that certain measures or claims in the panel request or in the Republic of Korea 's 
first written submission are not properly before the Panel, the following procedure applies. 
Exceptions to th is procedure shall be granted upon a showing of good cause.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submission to the WT/DS539/R/Add.1  
 
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  Panel. The R epublic of Korea shall submit its response to the request before the 
first substantive meeting of the Panel, at a time to be determined by the Panel in light of 
the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a prelimi nary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. In the event that the Panel finds it appropriate to issue a preliminary ruling before the 
issuance of its Report, the Panel may provide reasons for the ruling at the time that the 
ruling is made, or subsequently in its Report .  
d. Any request for such a preliminary ruling by the United States before the first meeting, 
and any subsequent submissions of the parties in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties .  
(2) This procedure is without prejudice to the parties ' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the 
first substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) Where the original language of an exhibit or portion thereof is not a WT O working 
language, the submitting party or third party shall simultaneously submit a translation of the 
exhibit or relevant portion into the WTO working language of the submission. The Panel may 
grant reasonable extensions of time for the translation of e xhibits upon a showing of good 
cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains th e translation in question. Any objection shall be accompanied 
by a detailed explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissi ons, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by the Republic of Korea should be numbered K OR-1, KOR -2, 
etc. Exhibits submitted by the United States should be numbered USA -1, USA -2, etc. If, for 
example, the last exhibit in connection with the first submission was numbered KOR -5, the 
first exhibit in connection with the next submission would be numbered KOR -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS539/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is encouraged to make 
its submissions in accordance with the WTO Editorial Guide for Panel Submissions ( electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally durin g a meeting. The Panel may ask different or additional 
questions at the meeting .  
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before  it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later tha n 
5.00 p.m. (Geneva time) three working days preceding the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficien t time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the Republic of Korea to make an opening statement to present 
its case first. Subsequent ly, the Panel shall invite the United States to present its point of 
view. Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its statement. If interpretation is needed,  each 
party shall provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, together with an estimate 
of the expected duration of its statement. The Panel will accord equal t ime to the other party .  
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS539/R/Add.1  
 
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the Republic of Korea presenting its statement first. 
Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening s tatement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall  send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the t ime-frame established by the Panel 
before the end of the meeting.  
16. The second substantive meeting of the Panel with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that the United States shall be  given 
the opportunity to present its oral statement first. If the United States chooses not to avail itself of 
that right, it shall inform the Panel and the other party no later than 5.00pm (Geneva time) three 
working days day before the meeting. In that case, the Republic of Korea shall present its opening 
statement first, followed by the United States. The party that presented its opening statement first 
shall present its closing statement first.  
Third party session  
 
17. The third parties shall be prese nt at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all membe rs of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third -party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days preceding the 
third-party session of the meeting with the Panel.  
21. The third -party session shall be c onducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  WT/DS539/R/Add.1  
 
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  b. The Panel shall first hear the oral statements of the third parties, who shall speak in 
alphabetical order. Each third party making an oral statem ent at the third -party session 
shall provide the Panel and other participants with a provisional written version of its 
statement before it takes the floor. If interpretation of a third party 's oral statement is 
needed, that third party shall provide addit ional copies for the interpreters.  
c. Each third party should limit the duration of its statement to 15 minutes, and avoid 
repetition of the arguments already in its submission. If a third party considers that it 
requires more time for its opening stateme nt, it should inform the Panel and the parties 
at least 10 days before the meeting, together with an estimate of the expected duration 
of its statement. The Panel will accord equal time to all third parties for their statements .  
d. After the third parties  have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party 's submission or statement.  
e. The Panel may subsequently pose questions to any third pa rty.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Pa nel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a time frame established by the Panel before the end of the 
meeting.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries p rovided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel 's examination of the 
case.  
23. Each party shall submit an integrated executive summary. The integrated executive summary 
shall summarize the facts and arguments as presented to the Panel in the party 's first and second 
written submissions, its first and second oral statements, and if possible, its responses to questions 
following the first and second substantive meetings. The timing of the submission of the parties ' 
integrated executive summaries shall be indicated in the timetable adopted by the Panel.  
24. Each integrated executive s ummary shall be limited to no more than 20 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in th e timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a  summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summ ary of that third party 's arguments.  WT/DS539/R/Add.1  
 
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  Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such  a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party 's written request for review, in accordan ce with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other party 's written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall b e kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents shall apply to all documents 
submitted by parties and third parties during the course of the proceeding, except to th e extent they 
conflict with the Additional Working Procedures of the Panel Concerning Business Confidential 
Information:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047; DSRegistry@wto.org ). Each party and third party 
shall submit a copy of its submissions and a copy of its Exhibits to the Panel by 5.00 p.m. 
(Geneva time) on the due dates established by the Panel in Microsoft Word format or in 
PDF format, either on a CD -ROM, a DVD or as an e -mail attachment.  
b. The electronic version of documents shall constitute the official version for the purposes 
of the record of the dispute. Should there be any discrepancy between the Microsoft Word 
format and PDF format of the documents, the Word format shall constitute the final version 
of the party 's submission.  
c. All emails to the Panel shall be addressed to DSRegistry@wto.org, and copied to other 
WTO Secretariat staff whose email addresses have b een provided to the parties during the 
course of the proceeding. If a CD -ROM/DVD is provided, it shall be filed with the 
DS Registry  (office No. 2047).  
d. As soon as possible, and in any case no later than two working days following the 
submission of docum ents in accordance with the above procedures, each party and third 
party shall provide the DS Registry (office No. 2047) with a paper copy of all such 
documents submitted to the Panel.  
e. Each party shall serve any document submitted to the Panel directly  on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and  on all other third parties. A 
party or third party may serve its documents on another party or third party in electronic 
format only, either as an e -mail attachment, or on a CD -ROM or DVD. Each party and third 
party shall confirm that copies have been ser ved on the parties and third parties, as 
appropriate, at the time it provides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) b y 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  
g. In addition, each party and third party is encouraged to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the electronic copy pursuant to paragraph a . If the parties or third parties WT/DS539/R/Add.1  
 
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  have any questions or technical difficulties relating to the DDSR, they are invited to consult 
the DDSR User Guide (electronic copy provided) or contact the DS Registry  at 
DSRegistry@wto.org.  
h. As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Inter im Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
 WT/DS539/R/Add.1  
 
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING  
BUSINESS CONFIDENTIAL INFORMATION  
 
Adopted on 13 February 2019  
 
1. The following procedures apply to business confidential information (BCI) submitted during 
the course of the present Panel proceedings .  
 
2. For the purposes of these Panel proceedings, BCI is any information that was previously 
treated by the U.S. Department of Commerce as confidential or proprietary information protected 
by Administrative Protective Order in the course of the specific antidumping and countervailing 
proceedings at issue in this dispute, entitled Certain Corrosion -Resistant Steel Products From the 
Republic of Korea (A -580-878), Certain Cold -Rolled Steel Flat Products From the Republic of Korea 
(A-580-881), Certain Hot -Rolled Steel Flat Products From the Republic of Korea (A -580-883), 
Large  Power Transformers From the Republic of Korea (A -580-867), Large Power Transformers From 
the Republic of Korea (A -580-867) (Second Review), Large Power Transformers From the Republic  of 
Korea (A -580-867) (Third Review), Large Power Transformers From the Republic of Korea (A -580-
867) (Fourth Review), Large Power Transformers From the Republic of Korea (A -580-867) 
(Sunset  Review), Certain Cold -Rolled Steel Flat Products From the Republic of  Korea (C -580-882), 
and Certain Hot -Rolled Steel Flat Products From the Republic of Korea (C -580-884). However, these 
procedures do not apply to any information that is available in the public domain. In addition, these 
procedures do not apply to any BCI i f the entity which provided the information in the course of the 
aforementioned investigations or administrative reviews agrees in writing to make the information 
publicly available.  
 
3. If a party considers it necessary to submit to the Panel BCI as defined above from an entity 
that submitted that information in the investigation  or administrative review  at issue, the party shall, 
at the earliest possible date, obtain an authorizing letter from the entity and provide such authorizing 
letter to the Pan el, with a copy to the other party. The authorizing letter from the entity shall 
authorize both Korea and the United States to submit in this dispute, in accordance with these 
procedures, any confidential information submitted by that entity in the course of the investigation  
or administrative review . Each party shall, at the request of the other party, facilitate the 
communication to an entity in its territory of any request to provide an authorizing letter referred to 
above. Each party shall encourage any  entity in its territory that is requested to grant the 
authorization referred to in this paragraph to grant such authorization.  
 
4. No person may have access to BCI except a member of the Secretariat or the Panel, an 
employee of a party or third party, or  an outside advisor to a party or third party for the purposes 
of this dispute. However, an outside advisor to a party or third party is not permitted access to BCI 
if that advisor is an officer or employee of an enterprise engaged in the production, sale,  export, or 
import of the products that were the subject of the investigation  or administrative review  at issue in 
this dispute, or an officer or employee of an association of such enterprises.  
 
5. A person having access to BCI shall treat it as confidenti al, i.e. shall not disclose that 
information other than to persons authorized to have access to it pursuant to these procedures. 
Each party and third party is responsible for ensuring that its employees and outside advisors comply 
with these procedures. BC I obtained under these procedures may be used only for the purpose of 
providing information and argumentation in this dispute and for no other purpose. All documents 
and electronic storage media containing BCI shall be stored in such a manner as to prevent  
unauthorized access to such information . Third parties ' access to BCI shall be subject to the terms 
of these procedures.  
 
6. A party submitting BCI shall mark the cover and/or first page of the document containing BCI, 
and each page of the document, to in dicate the presence of such information. The specific 
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The 
first page or cover of the document shall state "Contains Business Confidential Information on 
pages  xxxxx x", and each page of the document shall contain the notice "Contains Business 
Confidential Information " at the top of the page . Documents previously submitted to or created by WT/DS539/R/Add.1  
 
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  the U.S. Department of Commerce containing information designated as BCI for the  purposes of 
these proceedings pursuant to paragraph 2, and marked as business proprietary information, or 
words to that effect (including headers and bracketing), shall be deemed to comply with this 
requirement . A party submitting BCI in the form of, or a s part of, an Exhibit shall, in addition to the 
above,  so indicate by putting "BCI" next to the exhibit number (e.g., Exhibit KOR -001 (BCI), 
Exhibit  USA-001 (BCI)).  
 
7. Where BCI is submitted in electronic format, the file name shall include the terms 
"Business Confidential Information " or "BCI". In addition, where applicable, the label of the storage 
medium shall be clearly marked with the statement "Business Confidential Information " or "BCI". 
 
8. Where a party submits a document containing BCI to the Pan el, the other party or third party 
referring to that BCI in its documents, including written submissions and oral statements, shall 
clearly identify all such information in those documents. All such documents shall be marked and 
treated as described in par agraph 6. In the case of an oral statement containing BCI, the party or 
third party making such a statement shall inform the Panel before making it that the statement will 
contain BCI, and the Panel will ensure that only persons authorized to have access t o BCI pursuant 
to these procedures are present or observing the session at that time. The written versions of such 
oral statements submitted to the Panel shall be marked as provided for in paragraph 6.  
 
9. If a party or third party considers that information submitted by the other party or a third  party 
should have been designated as BCI and objects to its submission without such designation, it shall 
forthwith bring this objection to the attention of the Panel and the other party, and, where relev ant, 
the third parties, together with the reasons for the objection. Similarly, if a party or third party 
considers that the other party or a third party designated as BCI information which should not be so 
designated, it shall forthwith bring this objecti on to the attention of the Panel and the other party, 
and, where relevant, the third parties, together with the reasons for the objection. The Panel shall 
decide whether information subject to an objection will be treated as BCI for the purposes of these 
proceedings on the basis of the criteria set out in paragraph 2.  
 
10. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel circulates its final report to the Members, 
the Panel will give each party an opportunity to review the report to ensure that it does not contain 
any BCI.  
 
11. Submissions, exhibits, and other documents or recordings containing BCI will be included in 
the record forwarded to the Appellate Body in the event of an appeal of the Report of the Panel.  
 
12. The Panel reserves the right, after consulting with the parties, to amend and/or supplement 
these Additi onal Working Procedures concerning BCI.  
 
 WT/DS539/R/Add.1  
 
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  ANNEX A -3 
PRELIMINARY RULING OF THE PANEL  
2 July 2019  
1 INTRODUCTION  
 
1.1.  On 23 April 2019, pursuant to paragraph 4 of the Panel's Working Procedures, the United States 
requested a preliminary ruling, alleging that, contrary to the requirements of Article 6.2 of the DSU, 
Korea's Panel Request fails to clearly identify the specif ic unwritten measure that is the object of an 
"as such" claim. On this basis, the United States requests the Panel to rule that Korea's "as such" 
claim against an "alleged unwritten measure" is outside the Panel's terms of reference.1 Korea 
responded to t he United States' preliminary ruling request on 21 May 2019, asserting that its Panel 
Request properly identifies the specific measure at issue in accordance with Article 6.2 of the DSU 
and that, therefore, its "as such" claim against the unwritten measure  is within the Panel's 
jurisdiction.2 With respect to timing, both parties requested the Panel to issue its preliminary ruling 
at the earliest moment practicable.3 
1.2.  For the efficient conduct of these proceedings, and in keeping with the Parties' des ire for a 
ruling at the earliest moment practicable, the Panel considers it appropriate to issue its preliminary 
ruling before the first substantive meeting in this dispute. At the same time, the Panel notes that 
paragraph  4.1.(c) of the Working Procedures  allows the Panel, in instances where it decides to issue 
a preliminary ruling before the issuance of its Report, to provide the reasons for such a ruling 
subsequently in its Report. In exercise of the latitude available to it under paragraph 4.1.(c) of th e 
Working Procedures, the Panel shall provide the reasoning underlying this preliminary ruling as part 
of its Interim Report to the Parties.  
2 PRELIMINARY RULING  
 
2.1.  Having carefully considered the arguments of the Parties and the Third Parties, the Panel 
declines to rule that Korea's "as such" claim concerning the alleged unwritten measure is outside its 
terms of reference. Rather, the Panel finds that, for purposes o f Article 6.2 of the DSU, the alleged 
unwritten measure that is the object of Korea's "as such" challenge is properly identified in 
section  I.C of the Panel Request as follows:  
C. Use of Adverse Facts Available As Ongoing Conduct, or a Rule or Norm of 
Gene ral and Prospective Application  
This request also concerns the ongoing conduct or the practice of the USDOC of using 
"adverse facts available" as a rule or norm of general and prospective application when 
a producer or exporter is found to have failed to cooperate by not acting to the best of 
its ability. Under this ongoing conduct or norm, whenever the USDOC makes a finding 
that a producer or exporter has failed to cooperate by not acting to the best of its ability, 
it adopts adverse inferences and, in de termining the duty rate for this producer or 
exporter, selects facts from the record that are adverse to the interests of this producer 
or exporter without establishing (i) that such inferences can reasonably be drawn in 
light of the degree of cooperation received, and (ii) that such facts are the "best 
information available" in the particular circumstances.[1] 4 
1 The use of adverse facts available has been consistently applied by the USDOC and is undertaken 
pursuant to: (i) Section 502 of the Trade Prefe rences Extension Act of 2015, Pub. L. No. 114 -27; 
 
1 United States' request for a preliminary ruling, paras. 1, 4 and 24.  
2 Korea's response to United States' preliminary ruling request, para. 53 . 
3 United States' request for a preliminary ruling, para. 24; Korea's response to United States' 
preliminary ruling request, para. 54.  
4 Panel  Request, para. 9 and footnote 1 thereto . WT/DS539/R/Add.1  
 
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  (ii) Section 776 of the Tariff Act of 1930, codified at 19 U.S.C. § 1677e; and (iii) the implementing 
regulations of the USDOC in 19 C.F.R. § 351, including in particular section 308.  
It is also evidenced, for example, by the manner in which facts available was used in the measures 
identified in Section I.A of this Request. A preliminary and non -exhaustive list of measures 
confirming the existence of this ongoing conduct or rule or norm of applying adverse f acts available 
whenever a finding is made that a producer or exporter has failed to act to the best of its ability is 
attached as Annex I to illustrate the practice.  
2.2.  The above preliminary ruling by the Panel is limited to the issue of its jurisdictio n and is without 
prejudice to any substantive arguments concerning the existence or the precise content of the 
measure at issue that may be raised by the Parties or Third Parties during the course of these 
proceedings.  
2.3.  A copy of this preliminary ruli ng will be transmitted to the Third Parties.  
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX A -4 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  On 24 September 2020, the Panel transmitted its Interim Report to the parties. On 
12 October  2020, Korea and the United States each submitted written requests seeking a review of 
precise aspects of the Interim Report. On 26 October 2020, both parties submitted comments on 
each other's  requests for review. Neither party requested an interim review meeting.  
1.2.  In accordance with Artic le 15.3 of the DSU, this section of the Panel Report sets out our 
response to the parties'  requests made at the interim review stage. Where appropriate, we have 
modified aspects of the Report, in light of the parties'  requests and comments.  Due to changes as a 
result of our review, the numbering of paragraphs and footnotes in the Final Report has changed 
from the Interim Report. The text below refers to the numbers in the Interim Report, with the 
numbers in the Final Report in parentheses for ease of refere nce, if different.  
1.3.  The Panel has also rectified certain typographical and other non -substantive errors and made 
adjustments concerning the designation of BCI, in light of the parties'  comments and on its own 
initiative.  
2  SPECIFIC REQUESTS FOR REVI EW 
2.1  Korea's  specific requests for review  
2.1.1   The Panel's  use of judicial economy  
2.1.  Korea takes issue with the Panel's  exercise of judicial economy with respect to its claims 
regarding selection of the replacement facts by the USDOC, in cases whe re the Panel has found that 
the USDOC resorted to facts available in a WTO -inconsistent manner. Acknowledging that "the 
exercise of judicial economy is a judgment call for WTO panels to make in light of the specific claims 
in each dispute", Korea nonethele ss asserts that "this competence is not boundless".1 
2.2.  Specifically, Korea takes issue with ten instances of the Panel's  exercise of judicial economy 
with respect to Korea's  claims on the selection of replacement facts by the USDOC in 
four anti-dumpin g and two countervailing duty investigations.2 Korea submits that, in these 
instances, the findings made by the Panel "may not suffice to resolve the dispute in case of an appeal 
by the United States".3 Korea considers it "desirable and prudent" for the Panel to make findings on 
its claims concerning the selection of replacement facts by the USDOC, "even if only on an 
'arguendo'  basis", in instances where the Panel had already found the USDOC's  resort to facts 
available to be WTO -inconsistent.4 Korea not es that, although closely linked, the issues of resort and 
selection "focus on different factual questions and raise different legal issues".5 Therefore, "[i]n case 
of a successful appeal by the United States … Korea will not have secured a positive solut ion to the 
second aspect of its claims on the selection of facts available" because "the Appellate Body may not 
be able to complete the legal analysis in the absence of sufficient factual findings or undisputed facts 
on the record".6 
2.3.  The United Stat es objects to Korea's  request that the Panel reconsider its exercise of judicial 
economy. According to the United States, a panel's  discretion to exercise judicial economy flows 
 
1 Korea 's request for interim review, paras.  5 and 11 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , paras.  403-405, in turn referring to Appellate Body Report, Australia – Salmon , para. 223 ). 
2 Korea 's request for interim review , para. 8 (referring to Interim Report para s. 7.84, 7.141, 7.182, 
7.227, 7.314, 7.315, 7.369, 7.408, 7.476, and 7.568 ). 
3 Korea 's request for interim review,  para. 7. 
4 Korea 's request for interim review,  para. 8. 
5 Korea 's request for interim review,  para. 9. 
6 Korea 's request for interim review, paras.  10-11. WT/DS539/R/Add.1  
 
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  from Articles 3.7 and 11 of the DSU, and nothing in the text of these provisio ns "indicates that a 
panel is required to examine or make findings on each and every claim made by a complaining 
party".7 Referring to the ten instances of the Panel's  exercise of judicial economy identified by Korea, 
the United States submits that the Pa nel's findings do not lead to a partial resolution of the matter, 
and that Korea has not argued such.8 For the United States, Korea's  argument that its claims with 
respect to "resort" and "selection" rely on different factual questions and raise different  legal issues 
only supports the conclusion that the Panel acted appropriately in exercising judicial economy.9 
The United States argues that, "[w]here additional claims with respect to the same measure involve 
different factual and legal issues, a substantial economy is achieved by not addressing those 
additional matters".10 For the United States, Korea's  argumen t that it will not be able to secure a 
positive solution to some aspects of its claims in the event of a successful appeal  "relies entirely on 
speculation regarding future, unknowable events" and, by this logic, "apparently no panel should 
exercise judicial economy on any issue, with each issue to be considered by a panel in the event of 
an appeal" .11 
2.4.  We recall that, in addressing Korea's  "as applied" claims, where we have found that the 
USDOC's  resort to facts available was WTO -inconsistent, we have not ruled upon Korea's  claims and 
arguments aimed at the USDOC's  subsequent selection of the replacement facts. As we have 
explained in our Report, we do not believe that making further findings on such claims "on the basis 
of the record used for t he USDOC's  WTO-inconsistent findings would assist in providing a positive 
solution to the dispute".12 Panels would be unable to ever exercise judicial economy if they were 
required to rule upon every claim and complete the analysis for each issue in view of the mere 
possibility that some of their other findings of WTO -inconsistency could be reversed on appeal. In  the 
specific circumstances of this case, we consider that the Panel's  discretion to exercise judicial 
economy cannot be guided by this possibilit y alone. We therefore reject Korea's  request. That said, 
in order to further support our reasoning, we have added to the relevant paragraphs a reference to 
a prior instance where another panel exercised judicial economy for similar reasons.13  
2.1.2   Paragraph 7.20  
2.5.  Korea considers, first, that it would be "more accurate" if the Panel does not refer to "all claims" 
in this paragraph, but rather limits its reference to the claims under Article 6.8 of the 
Anti-Dumping  Agreement and Article 12.7 of the S CM Agreement.14 Second, Korea also submits that 
it "did not argue that a comparative analysis was always required when selecting the replacement 
facts", but rather that "a process of reasoning and evaluation" is required by the investigating 
authority.15 According to Korea, "the Panel's  view is not really different from Korea's  position in this 
regard", noting that the legal obligation for investigating authorities "is to engage in a process of 
reasoning and evaluating 'all facts that are properly availab le' before the authority" when selecting 
replacement facts for the missing "necessary" information.16 Korea argues that "a comparative 
evaluation would rather be a likely result of the requisite process of reasoning and evaluation", but 
not a "legal oblig ation".17 Korea asserts that "the extent to which a comparative evaluation is 
required" depends on the circumstances of the investigation in question, including factors such as 
the quantity and quality of the available facts on the record, and the types o f determinations to be 
made.18 Based on the above, Korea requests that paragraph 7.20 and footnote 51 be amended to 
more accurately reflect Korea's  arguments.19 
 
7 United States'  comments on Korea 's request for interim review, para. 7. 
8 United States'  comments on Korea 's request for interim review, para. 8. 
9 United States'  comments on Korea 's request for interim review, para. 8. 
10 United States'  comments on Korea 's request for interim review, para. 8. 
11 United States'  comments on Korea 's request for interim review, para. 9. 
12 Report of the Panel, paras.  7.84, 7.141, 7.182, 7.227, 7.314, 7.315, 7.369 (7.370 ), 7.408 (7.409), 
7.476 (7.477), and 7.568 (7.569).  
13 Report of the Panel, paras.  7.84, 7.141, 7.182, 7.227, 7.314, 7.315, 7.369 (7.370), 7.408 (7.409), 
7.476 (7.477) and 7.568 (7.569), and footnotes 247 (252), 448 (453), 562 (567), 723 (729), 972 (982), 973 
(983), 1133 (1145), 1254 (1266), 1457 (1470), and 1689 (1702).  
14 Korea 's request for interim review, para. 14. 
15 Korea 's request for interim review, para. 14. 
16 Korea 's request for interim review, para. 21. 
17 Korea 's request for interim review, para. 21. 
18 Korea 's request for interim review, para. 19 (referring to Appellate Body Report, US – Carbon Steel 
(India) , para. 4.434 ). 
19 Korea 's request for interim review,  paras.  22-23. WT/DS539/R/Add.1  
 
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  2.6.  The United States does not respond to Korea's  first comment, but objects to its second request 
concerning this paragraph. Pointing out that Korea made several references in its submissions to the 
need for an investigating authority to undertake the "requisite comparative analysis" when selecting 
the "best information available", the United S tates submits that the Panel correctly reflects 
Korea's  position.20 
2.7.  We have modified this paragraph in order to accommodate the first request made by Korea. 
We are, however, unable to accede to Korea's  second request. The text of this paragraph accu rately 
presents the arguments made by Korea at multiple instances in its written submissions. Despite 
Korea's  broader references to the investigating authority's  obligation "to engage in a process of 
reasoning and evaluation", Korea has also more specifica lly stated that "when selecting the facts 
available to be used, the investigating authority should make a comparative evaluation of all 
available information before deciding which information constitutes the best information available".21 
In its submissio ns, Korea has referred multiple times to "the required comparative evaluation"22 and 
the "requisite comparative analysis".23 Korea also has noted, already when presenting the "guiding 
principles" for the use of facts available, that "an investigating aut hority must undertake  a 
comparative evaluation to ensure that it is using the 'best information'  available".24 We therefore 
disagree with Korea that it "did not argue that a comparative analysis was always required when 
selecting the replacement facts".25 We have, however, modified footnote 51 in order to include 
additional references to Korea's  submissions asserting that a "comparative evaluation" is always 
required when an investigating authority is selecting the replacement facts.  
2.1.3   Footnote 56 of  paragraph 7.22  
2.8.  Korea considers the references in footnote 56 on the "fundamental disagreement between the 
parties" to be out of place as they concern the description and precise content of the alleged 
unwritten measure that is challenged "as such".26 The United States does not respond to 
Korea's  request.  
2.9.  Having examined Korea's  concern, we have deleted footnote 56 and modified the 
accompanying text.  
2.1.4   Paragraphs 7.45 -7.48 
2.10.   Korea requests the Panel "to reconsider the discussion" in paragraphs 7.45 -7.48 of the 
Interim  Report for the same reasons underlying its request for modification of paragraph 7.20.27 
Korea asserts that the Panel erroneously understood "that Korea developed an argument that an 
authority must always engage in a comparative evaluation".28 Korea requests the Panel to delete 
 
20 United States'  comments on Korea 's request for interim review, para. 11 (referring to Korea's  first 
written submission, para.  88). 
21 Korea 's first written submission, para. 62. 
22 In the context of the HRS Anti -Dumping Investigation, Korea argued that the USDOC acted 
inconsistently with Article  6.8 and paragraph 7 of Annex I I when selecting facts available, as " there was 
zero explanation, let alone the required comparative evaluation, as to how and why the highest and lowest 
values were the best information available to fill the alleged missing information ". (Korea 's first wr itten 
submission , para. 509). Under the CRS Countervailing Duty Investigation, Korea asserted that the USDOC 
"failed to engage in the required comparative evaluation to determine whether the information used was the 
best information available that would le ad to an accurate determination ". (Korea 's first written submission , 
para. 337).  See also  Korea 's first written submission , paras.  323, 443, 450, 461, 853, 859 , and 880; 
second  written submission, paras.  264 and 367 . 
23 Korea argued in the context of the C ORE Anti -Dumping Investigation that " the choice of facts 
available used by the USDOC to replace the allegedly missing information was not based on the requisite 
comparative analysis of available information on the record with a view to reaching an accurate  determination ". 
(Korea 's first written submission , para. 126). In the context of the LPT Anti -Dumping Investigation (POR3),  
Korea argued that " the USDOC was obliged to sufficiently reflect in its investigative reports the process of 
requisite comparative evaluation and assessment, involving consideration and comparison of 'all substantiated 
facts on the record '". (Korea 's first written submission , para.  859).  See also Korea 's first written submission , 
paras.  88, 201, and 776.  
24 Korea's  first written submission, para.  71. (emphasis added)  
25 Korea 's request for interim review, para. 14. 
26 Korea 's request for interim review, para. 24. 
27 Korea 's request for interim review, para. 25. 
28 Korea 's request for interim review, para. 25. WT/DS539/R/Add.1  
 
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  paragraphs  7.45-7.48 of the Interim Report,  and to replace them with a paragraph expressing its 
view that a "comparative evaluation may not be a necessary prerequisite to making a determination 
in every instance in which an investigating authority resorts to 'facts available'".29 The United States 
disagrees with Korea 's requests and notes, by reference to Korea's  substantive submissions, that 
the Panel has correctly presented Korea's  arguments.30 
2.11.   We are unable to accede to Korea's  request for the same reasons that are set out in our 
examination of Korea's  reque st for modification of paragraph 7.20.31 
2.1.5   Paragraph 7.52  
2.12.   Korea requests the Panel to modify this paragraph and add to the description of the facts 
relating to Hyundai Steel's  communication with the USDOC regarding its difficulties in reportin g 
further manufactured sales the events reflected in Exhibits KOR -13, KOR -14, and KOR -16.32 
The United States does not object to Korea's  request, but proposes a different manner of presenting 
these additions.33 
2.13.   We have modified the text of paragra ph 7.52 in light of the comments by the parties.  
2.1.6   Paragraph 7.55  
2.14.   Korea requests the Panel to modify this paragraph by adding text indicating that Hyundai 
Steel commented in its case brief on the USDOC's  decision to cancel verification.34 The United States 
does not object to Korea's  request, but proposes a different manner of presenting this addition.35 
2.15.   We have modified the text of paragraph 7.55 in light of the comments by the parties.  
2.1.7   Paragraph 7.60  
2.16.   Korea requests the Panel to insert an explanation in order to clarify Korea's  claim under 
paragraph 5 of Annex II.36 The United States does not comment on this request.  
2.17.   We have modified the text of paragraph 7.60 in light of Korea's  request.  
2.1.8   Paragraphs 7.67 an d 7.71  
2.18.   Korea requests the Panel to delete the following sentence from paragraph 7.67: " [c]ontrary 
to Korea's  arguments, we do not consider that the USDOC 'originally determined that Hyundai Steel 
did not have to file a Section E response'". Korea al so requests the deletion of the following sentence 
from paragraph 7.71: "[w]e disagree with Korea's  argument that the USDOC 'originally 
determined'  that Hyundai Steel did not have to file a Section E response" . Korea further requests 
the Panel to modify th e second sentence of paragraph 7.71. Specifically, Korea requests that it be 
"reflected that Korea did not argue that the USDOC made a 'determination'  that a Section E response 
did not have to be filed. Rather, Korea noted that the USDOC 'instructed'  Hyund ai Steel not to file" .37 
The United States disagrees with Korea's  requests, and notes that these paragraphs correctly reflect 
Korea's  arguments and the USDOC's  instructions.38 In particular, the United States cites 
Korea's  first written submission, wherein Korea stated that the USDOC "originally determined that 
 
29 Korea 's request for interim review, para. 27. 
30 United States'  comments on Korea 's request for interim review, para. 12. 
31 See para. 2.7. above.  
32 Korea 's request for interim review, paras.  28-29. 
33 United States'  comments on Korea 's request for interim review, para. 13. 
34 Korea 's request for interim review, paras.  30-31. 
35 United States'  comments on Korea 's request for interim review, para. 14. 
36 Korea 's request for interim review, paras.  32-33. 
37 Korea 's request for interim review, para. 35. 
38 United States'  comments on Korea 's request for interim review, paras.  15-17. WT/DS539/R/Add.1  
 
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  Hyundai Steel did not have to file a Section E response", and the USDOC's  questionnaire, which 
stated that Hyundai Ste el was "not currently required to respond to section E".39 
2.19.   We consider that these paragraphs accurately reflect the argument presented by Korea as 
part of its submissions. While we are, for this reason, unable to accede to Korea's  requests, we have  
inserted a footnote to the second sentence of paragraph 7.71 including the USDOC's  statement on 
this issue, for further clarity.  
2.1.9   Paragraph 7.173  
2.20.   Korea requests the Panel to modify a sentence in this paragraph which states that " [b]esides 
the allegedly 'insignificant'  number of the transactions at issue, Korea does not offer any other 
reason as to why the information missing was not 'necessary'  for purposes of the 
USDOC's  determination within the meaning of Article 6.8", and insert certain additional arguments 
made by Korea.40 The United States considers that  the Panel's  statement in paragraph 4.1 of the 
Interim Report that arguments of the parties are reflected in their provided executive summaries 
appropriately addresses Korea's  request.41 
2.21.   We consider that this paragraph accurately reflects the arguments presented by Korea as part 
of its submissions and we are, therefore, unable to accede to Korea's  request.  
2.1.10   Footnote 565 (57 0) of paragraph 7.183  
2.22.   Korea reque sts the Panel to delete the text in footnote 565 of the Interim Report on the basis 
that it  concerns "home -market sales" and  is not "entirely relevant" to the issue discussed in the 
main text of this paragraph (concerning "US export sales").42 The United States objects to this 
request, noting that the Panel intended to address home -market sales in the footnote and US sales 
in the main text of the paragraph.43 
2.23.   We have deleted the text of footnote 565 (57 0) in light of Korea's  request.  
2.1.11   Paragr aph 7.186  
2.24.   Korea requests the Panel to modify its finding of violation in this paragraph in order to cover 
both Article 6.8 and paragraph 7 of Annex II of the Anti -Dumping Agreement. Korea argues that 
these provisions "jointly speak to the relevant o bligation on investigating authorities in selecting the 
replacement facts", therefore given the Panel's  finding of violation of Article 6.8, the Panel should 
not exercise judicial economy with respect to Korea's  claim under paragraph 7.44 The United State s 
objects to this request, noting that "the Panel's  finding was limited the USDOC's  decision to resort 
to facts available and not to the USDOC's  selection of facts available".45 
2.25.   We note first that, contrary to the United States'  position, our findi ng in this paragraph 
concerns the USDOC's  selection of the replacement facts and it is not limited to the USDOC's decision 
to resort to facts available. In that respect, we have explained, as part of our interpretative analysis, 
that paragraph 7 of Annex I I serves as relevant context for the interpretation of  Article 6.8 of the 
Anti-Dumping Agreement. It is also clear, however, that the texts of these provisions are different. 
Korea has not provided any compelling reason, based on the text of paragraph 7 of  Annex II, as to 
why, having already concluded that the USDOC acted inconsistently with Article 6.8 in selecting the 
replacement facts, the Panel was also under an obligation to make findings under paragraph 7 of 
Annex II. We are, therefore, unable to acce de to Korea's  request.  
 
39 United States'  comments on Korea 's request for interim review, paras.  15-17 (referring to 
Korea's  first written submission, para.  151; CORE anti -dumping questionnaire to Hyundai Steel, 
(Exhibit  KOR-6), p. 2). 
40 Korea's  request for interim review, paras.  39-40. 
41 United States'  comments on  Korea 's request for interim review, para. 18. 
42 Korea's  request for interim review, para.  41. 
43 United States'  comments on Korea 's request for interim review, paras.  19-20. 
44 Korea 's request for interim review, paras.  42-43. 
45 United States'  comments on Korea 's request for interim review, para. 21. WT/DS539/R/Add.1  
 
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  2.1.12   Paragraph 7.237  
2.26.   Korea requests the Panel to modify this paragraph by including certain additional factual 
information "to describe the full extent of the USDOC's  application of adverse facts available on this 
issue".46 The United States objects to this request, noting that "this section of the Report concerns 
the USDOC's  decision to resort to facts available and not the USDOC's  application of facts 
available".47 
2.27.   We are unable to accede to Korea's  reque st as we do not consider the proposed additions to 
be necessary for our analysis and findings.  
2.1.13   Paragraphs 7.240 and 7.244  
2.28.   Korea requests the Panel to modify these paragraphs by including certain additional factual 
information "to describe th e full extent of the USDOC's  application of adverse facts available".48 
The United States objects to these requests, noting that these paragraphs "are in a section of the 
Report concerning the USDOC's  decision to resort to facts available, and not the app lication of facts 
available".49 
2.29.   We are unable to accede to Korea's  request as we do not consider the proposed additions to 
be necessary for our analysis and findings.  
2.1.14   Paragraph 7.248  
2.30.   Korea requests the Panel to modify this paragraph in order to "reflect more fully the legal 
claims by Korea".50 The United States does not comment on this request.  
2.31.   We are unable to accede to Korea's  request because we consider that this paragraph 
accurately reflects Korea's  claims, and because the addition requested by Korea is already included 
in the summary of Korea's  arguments.  
2.1.15   Paragraph 7.250  
2.32.   Korea requests the Panel to include in this paragraph its claim that "the USDOC failed to use 
timely, appropriately submitted, a nd verifiable information from POSCO about the cross -owned 
affiliates".51 The United States objects to this request, noting that this paragraph is "in a section of 
the Report concerning the USDOC's  decision to resort to facts available, and not the applic ation of 
facts available", and that therefore the requested addition is not relevant to this section of the 
Report.52 
2.33.   We consider it appropriate to accommodate Korea's  request by modifying paragraph 7.249, 
instead of paragraph 7.250, to include Kor ea's claim.  
2.1.16   Paragraph 7.284  
2.34.   Korea requests the Panel to modify this paragraph by, at a minimum, specifying the facts as 
"alleged" by the USDOC and the United States, because the parties disagree over the accuracy of 
the facts described in th is paragraph.53 Korea further requests the Panel to modify this paragraph in 
order to reflect Korea's  position on the issue of the visit of the USDOC officials to the FEZ facility.54 
 
46 Korea 's request for interim review, paras.  45-46. 
47 United States'  comments on Korea 's request for interim review, para. 22. 
48 Korea 's request for interim review, paras.  47 and 49 . 
49 United States'  comments on Korea 's request for interim review, para. 23. 
50 Korea 's request for interim review, paras.  51-52. 
51 Korea 's request for interim review, para. 53. 
52 United States'  comments on Korea's  request for interim review, para.  23. 
53 Korea's request for interim review, para.  54. 
54 Korea 's request for interim review, para. 55. WT/DS539/R/Add.1  
 
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  The United States objects to Korea's  requests, as Korea does not propos e specific language and the 
arguments of the parties are reflected in their executive summaries.55 
2.35.   Having carefully examined the parties'  comments, we have modified this paragraph in order 
to accurately reflect the relevant factual background.  
2.1.17  Paragraph 7.313  
2.36.   Korea requests the Panel to modify this paragraph by finding that the USDOC erred not only 
in its intermediate finding that the cross -owned affiliate inputs were "primarily dedicated" to the 
cold-rolled steel production of POSCO , but also in its ultimate finding that the affiliates received 
countervailable subsidies that were attributable to POSCO.56 The United States objects to this 
request noting that Korea has not offered any valid basis for the Panel to make additional findi ngs 
that it had declined to make.57 
2.37.   We have modified this paragraph in order to accommodate Korea's  request. In line with this 
change, we have also modified paragraph 7.249.  
2.1.18   Paragraph 7.319  
2.38.   Korea requests the Panel to add references to Korea's  arguments regarding the 
USDOC's  selection of the replacement facts.58 The United States does not comment on this request.  
2.39.   We have inserted additional text in a new paragraph (7.320) in light of Korea's  request.  
2.1.19   Paragr aph 7.335 (7.336)  
2.40.   Korea requests the Panel to modify this paragraph by including certain additional factual 
information "to describe the full extent of the USDOC's  application of adverse facts available".59 The 
United States objects to this request , as this paragraph is in a section of the Panel Report regarding 
the USDOC's  decision to resort to facts available, and not the USDOC's  selection of facts available.60 
2.41.   We are unable to accede to Korea's  request as we do not consider the proposed c hanges to 
be necessary for our analysis and findings.  
2.1.20   Paragraph 7.462 (7.463)  
2.42.   Korea requests the Panel to modify the last sentence of this paragraph to more accurately 
reflect the facts. Korea requests the Panel to clarify that the USDOC accepted the 
petitioner's  submission, but stated that it would not accept new information "thereafter".61 The 
United States objects to this request, noting that this modification would incorrectly imply that the 
USDOC allowed the petitioner to make certain factual additions when raising certain 
inconsistencies.62 
2.43.   We have modified this paragraph in order to address Korea's  request, while also taking into 
account the United States'  concern. Accordingly, we have also modified paragraph 7.467 (7. 468) of 
the Interim Report.  
2.1.21   Paragraph 7.613 (7.614)  
2.44.   Korea requests the Panel to modify the third sentence of this paragraph by adding further 
details about its argument concerning the meaning of the term "adverse inferences".63 The 
 
55 United States'  comments on Korea 's request for interim review, paras.  24-25. 
56 Korea 's request for interim review, para. 57. 
57 United States'  comments on Kore a's request for interim review, para. 27. 
58 Korea 's request for interim review, paras.  58-59. 
59 Korea 's request for interim review, para. 63. 
60 United States'  comments on Korea 's request for interim review, para. 28. 
61 Korea 's request for interim review, paras.  65-66. 
62 United States'  comments on Korea 's request for interim review, para. 29. 
63 Korea 's request for interim review, para. 68. WT/DS539/R/Add.1  
 
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  United  States objects to this modification on the basis that it would confuse the Panel's  deliberate 
discussion of one aspect of the alleged measure and would "take[] away from the clarity of the 
report".64 
2.45.   We have modified the text of this paragraph for f urther clarity in light of Korea's  request.  
2.1.22   Paragraphs 7.616 (7.617), 7.618 (7.619), and 7.619 (7.620)  
2.46.   As part of its comments on all of these paragraphs, Korea notes that the "unwritten measure 
challenged by Korea in this dispute is 'whenev er the USDOC makes a determination that an 
interested party has failed to cooperate to the best of its abilities, it automatically resorts to the use 
of AFA'".65 With respect to paragraph 7.616 (7.617) of the Interim Report, Korea requests the Panel 
to "reconsider" its understanding of paragraph 9 of the panel request and make the "necessary" 
changes.66 Specifically, Korea submits that paragraph 9 of its panel request merely goes on to 
"explain what i[s] meant by applying 'AFA'  by pointing to certain aspe cts of this practice of AFA", 
"[b]ut, these explanations do not change the nature of the challenge made which related to the use 
of AFA".67  
2.47.   With respect to paragraphs 7.618 (7.619) and 7.619 (7.620), Korea similarly requests the 
Panel to "reconsider its understanding of the unwritten measure" challenged by Korea and make the 
"necessary edits".68 Korea asserts that it "did not argue that the selection of replacement facts did 
not involve some form of evaluation; just not the appropriate on e".69 Korea submits that the "'crux 
of Korea's  concern'  is better stated as that, whenever there is a finding of non -cooperation, the 
USDOC will use adverse facts to fill the alleged gap, which, in turn, means that it will not engage in 
the required searc h for reasonable replacements for the missing information".70 According to Korea, 
there are no "two sets of arguments" as it never argued that "the use of AFA means that the USDOC 
will not engage in any evaluation when selecting the facts to replace the m issing information", rather 
that this "evaluation" is simply and consistently an inadequate evaluation.71 Moreover, Korea notes 
that, although the Panel says that it will examine both possible readings of Korea's  argument, it 
does not actually do so and f ocuses entirely on the argument that there is no evaluation of any kind 
that follows a finding of non -cooperation.72 
2.48.   The United States objects to Korea's  requests, noting that it cannot offer any meaningful 
response as Korea does not request and id entify any specific change.73 Referring to 
Korea's  submissions to the Panel, the United States takes issue with Korea's  comment that it "did 
not argue that the selection of replacement facts did not involve some form of evaluation; just not 
the appropriat e one".74 Moreover, the United States points out that, contrary to Korea's  comments, 
the Panel's  Interim Report fully addresses both possible understandings of the alleged unwritten 
measure identified by Korea, including one where the USDOC undertakes an inadequate analysis.75 
2.49.   We note that Korea does not propose any specific changes to these paragraphs, but, instead, 
requests the Panel to "reconsider" its understanding of the precise content of the alleged unwritten 
measure described by Korea. Most  of Korea's  comments on this point repeat its earlier arguments 
that we have already considered and addressed as part of our Interim Report. For example, Korea 
continues to assert that the " sole procedural circumstance of non -cooperation is the basis for t he 
selection of the facts available".76 If, as Korea alleges, the finding of non -cooperation is the " sole" 
basis for the selection of the replacement facts by the USDOC, it follows that there can be no other  
 
64 United States'  comments on Korea 's request for interim review, para. 37. 
65 Korea 's request for interim review, paras.  69 and 72 -73 (quoting Korea's  response to Panel question 
No. 104, para.  128).  
66 Korea 's request for interim review, paras.  69-70. 
67 Korea 's request for interim review, para. 69. 
68 Korea 's request for interim review, paras. 72 and 76.  
69 Korea 's request for interim review, para. 72. 
70 Korea 's request for interim review, para. 73. 
71 Korea 's request for interim review, para. 75. (emphasis original)  
72 Korea 's request for interim review, para. 74. 
73 United States'  comments on Korea 's request for interim review, paras.  38 and 40 -41. 
74 United States'  comments on Korea 's request for interim review, para. 32. 
75 United States'  comments on Korea 's request for interim review, paras.  34-36 (referring to 
Interim  Report, pa ras. 7.691 -7.692 and 7.696).  
76 Korea 's request for interim review, para. 69. (emphasis added)  WT/DS539/R/Add.1  
 
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  basis – or "evaluation" – for the USDOC's  selection. At the same time, Korea also maintains that the 
USDOC's  "AFA replacement 'evaluation'  is simply and consistently an inadequate  evaluation".77 
Furthermore, as the United States points out, our Interim Report already considers and addresses 
both possible understandings of the alleged unwritten measure identified by Korea.78 While we do 
not consider it necessary or useful to repeat our analysis i n the Interim Report, we have made some 
additional modifications to the text of these paragraphs in order to provide further clarity to our 
reasoning.  
2.1.23   Paragraph 7.617 (7.618)  
2.50.   Korea requests the Panel to modify this paragraph by completing th e quote of 
Korea's  argument from paragraph 1034 of its first written submission.79 The United States objects 
to this addition and considers that it  would only distract from the narrow focus of this paragraph.80 
2.51.   We have modified the text of this paragraph for further clarity in light of Korea's  request.  
2.1.24   Paragraph 7.627 (7.628)  
2.52.   Korea requests the Panel to reconsider its understanding of the differences between the 
alleged unwritten measure identified by Korea and the measure at issue in US – Anti-Dumping 
Methodologies (China) . Korea asserts that the alleged unwritten measure challenged by Korea is 
"essentially the same" as the measure that was challenged by China in that dispute, as the precise 
content of the AFA Norm was explain ed in very similar terms in the two instances.81 Additionally, 
Korea also requests the Panel to modify this paragraph in order to accurately reflect Korea's  position, 
which was not that a "comparative evaluation is always required".82 
2.53.   The United S tates objects to the first request, noting that the measure identified in US – 
Anti-Dumping Methodologies (China)  is distinct from the alleged measure challenged by Korea, as 
also explained by the Panel.83 The United States also objects to Korea's  second request, referring to 
parts of Korea's  submissions relevant to the "comparative evaluation" argument.84 
2.54.   We have modified the text of this paragraph in light of Korea's  first request. Relatedly, we 
have also modified the text of paragraphs 7.629 and  7.633 to provide further clarity to our reasoning, 
in light of Korea's  concerns. In light of our modifications, we do not need to address 
Korea's  second  request concerning this paragraph.  
2.1.25   Paragraph 7.657 (7.658)  
2.55.   Korea requests the Panel to "reconsider its reflection of Korea's  argument by deleting the first 
part of this sentence that refers to Korea's  arguments and to reconsider its findings accordingly".85 
Korea maintains that it did not argue that there is no evaluation to select replacem ent facts, but 
rather that this evaluation is "totally inadequate as it is focused on ensuring an adverse result rather 
than an accurate determination".86 The United States objects to this request and considers it to be 
based on the erroneous allegation t hat the Panel misunderstood the challenged measure.87 
2.56.   We have modified the text of this paragraph to provide further clarity in light of 
Korea's  request. For reasons provided in paragraph 2.49.  above, we see no need to further 
"reconsider" our find ings, as urged by Korea.  
 
77 Korea 's request for interim review, para. 75. (emphasis added)  
78 Interim Report, paras.  7.696 and 7.717 (Final Report, paras.  7.697 and 7.719).  
79 Korea 's request for interim review, para. 71. 
80 United States'  comments on Korea 's request for interim review, para. 39. 
81 Korea 's request for interim review, para. 78. 
82 Korea 's request for interim review, paras.  77-81. 
83 United States'  comments on Korea 's request for interim review, para. 42. 
84 United States'  comments on Korea 's request for interim review, paras.  43-44. 
85 Korea 's request for interim review, para. 83. 
86 Korea 's request for interim review, para. 82. 
87 United States'  comments on Korea 's request for interim review, para. 45. WT/DS539/R/Add.1  
 
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  2.1.26   Paragraph 7.670 (7.671)  
2.57.   Korea requests the Panel to "reconsider its understanding of the evidence presented by Korea 
in light of the argument Korea actually made and based on the precise content of the 'as 
such' meas ure challenged by Korea".88 The United States objects to Korea's  request, asserting that 
the Panel has not misunderstood the unwritten measure.89 
2.58.   We have modified the text of this paragraph and paragraph 7.672 (7.673) to provide further 
clarity in light of Korea's  request. For reasons provided in paragraph 2.49.  above, we  see no need 
to further "reconsider" our understanding, as suggested by Korea.  
2.1.27   Paragraph 7.671 (7.672)  
2.59.   Korea requests the Panel to "reconsider its approach to Korea's  identification of the measure", 
because "Korea's  argument was that as soon as a non -cooperation finding is made, the USDOC 
resorts to AFA" and "[w]hether that evaluation is sufficient to meet the obligations of the 
Anti-Dumping Agreement and the SCM Agreement is a matter to be examined in the context of 
Korea's  claim of violation of the Agreement".90 The United States objects to this request and  
considers that the Panel's  explanation is "more than adequate to support the Panel's  conclusion".91 
2.60.   We have modified the text of this paragraph to provide further clarity in light of 
Korea's  request. For reasons provided in paragraph 2.49.  above, we see no need to further 
"reconsider" our understanding of Korea's  identification of the measure.  
2.1.28   Paragraphs 7.678 (7.679), 7.680 (7.681), and 7.682 (7.683)  
2.61.   Korea requests the Panel "to reconsider its understanding of the facts and [its] f indings" in 
these paragraphs "in light of the unwritten measure that Korea challenges".92 Korea maintains that 
it has not argued that the USDOC selects replacement facts "without any further analysis", as 
suggested by the Panel, and the case of Heavy wall ed rectangular welded carbon steel pipes and 
tubes from Turkey  shows the exact pattern that Korea challenges "as such" and supports its 
position .93 The United States objects to this request as it is based on the " erroneous position that 
the Panel fundamen tally misunderstood the alleged unwritten measures Korea was challenging".94 
2.62.   We have modified the text of paragraphs 7.680 (7.681) and 7.682 (7.683) to provide further 
clarity in light of Korea's  requests. For reasons provided in paragraph 2.49.  above, we see  no need 
to further "reconsider" our understanding of the facts or our findings.  
2.1.29   Paragraph 7.685 (7.686)  
2.63.   Korea requests the Panel to "reconsider its understanding of the facts and [its] findings" in 
this paragraph "[f]or the reaso ns specified above in relation to paragraphs  7.678, 7.680, 7.682".95 
Korea further requests the Panel to be more specific regarding its discussion of Korea's  argument 
regarding the "kind of evaluation" provided by the USDOC when selecting replacement fact s.96 The 
United States objects to the first request  and asserts that the Panel has not misunderstood the 
unwritten measure challenged by Korea . The United States also objects to Korea's  second request 
and considers Korea's  request for more specificity to be "unwarranted".97 
 
88 Korea 's request for interim review, paras.  84-85. 
89 United States'  comments on Korea 's request for interim review, paras.  47-48. 
90 Korea 's request for interim review, paras.  86-88. 
91 United States'  comments on Kore a's request for interim review, para. 49. 
92 Korea 's request for interim review,  para. 91. 
93 Korea 's request for interim review, paras.  89-90. 
94 United States'  comments on Korea 's request for interim review, paras.  50-51. 
95 Korea 's request for interim review, para. 92. 
96 Korea 's request for interim review, para. 93. 
97 United States'  comments on Korea 's request for interim review, paras.  52-53. WT/DS539/R/Add.1  
 
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  2.64.   We have modified the text of this paragraph to provide further clarity in light of 
Korea's  request. For reasons provided in paragraph 2.49.    above, we  see no need to further 
"reconsider" our understanding of the facts or our fi ndings.  
2.1.30   Paragraph 7.693 (7.694)  
2.65.   Korea requests the Panel to reconsider the manner in which it presents Korea's  argument, 
and thus to reconsider its related findings based on this argument, as Korea has not argued that the 
USDOC selects replacement facts "without engaging in any further analysis" after making a finding 
of non -cooperation.98 The United States objects to Korea's  request as it is based "on its erroneous 
position that the Panel fundamentally  misunderstood the alleged  unwritten measures" challenged.99 
2.66.   We have modified the text of this paragraph to provide further clarity, in light of 
Korea's  request. For reasons provided in paragraph 2.49.  above, we see no need to further 
"reconsider" the manner in which we pre sent Korea's  argument or our related findings.  
2.1.31   Paragraph 7.694 (7.695)  
2.67.   Korea requests the Panel to modify the final sentence of this paragraph in order to more 
accurately reflect Korea's  argument, and to reconsider its findings, as it "has n ot argued in this 
dispute that a comparative evaluation is required 'in all circumstances'  when selecting replacement 
facts".100 The United States objects to Korea's  request as it is based on the erroneous position that 
the Panel has misunderstood the all eged unwritten measure challenges.101 
2.68.   For reasons explained in our analysis of Korea's  comments on paragraph 7.20 of the 
Interim  Report, we are unable to accede to Korea's  request.  
2.1.32   Paragraph 7.696 (7.697)  
2.69.   Korea requests the Panel to reconsider its finding that "the mere fact that there was 
'some'  evaluation means that Korea failed to establish the precise content of the measure", as Korea 
has not argued  that the USDOC does "not engage in any evaluation when it selects the rep lacement 
facts".102 The United States objects to this request.103 
2.70.   We have modified the text of this paragraph to provide further clarity in light of 
Korea's  request. For reasons provided in paragraph 2.49.  above, we see no need to further 
"reconsi der" our analysis and findings in this paragraph.  
2.2  The United States'  specific requests for review  
2.2.1   Paragraph 7.62  
2.71.   The United States requests the Panel to modify this paragraph in order to better reflect its 
arguments regarding Korea's  claim that no necessary information was missing, and in particular 
concerning the exchange on the "alternative [calculation] methodology".104 Korea objects to the 
requested modifications, noting that they do not present properly Korea's  position on this matt er, 
and they are in any event not relevant given the scope of Korea's  challenge.105 
2.72.   We have modified the text of this paragraph for further clarity in light of the 
United  States'  request.  
 
98 Korea 's request for interim review, para. 94. (emphasis omitted)  
99 United States'  comments on Korea 's request for interim review, para. 54. 
100 Korea 's request for interim review, paras.  95-98. 
101 United States'  comments on Korea 's request for interim review, para. 55. 
102 Korea 's request for interim review, paras.  100-102. (emphasis original)  
103 United States'  comments on Korea 's request for interim review, para. 56. 
104 United States'  request for interim review, para. 1. 
105 Korea 's comments  on the United States'  request for interim review, p. 2. WT/DS539/R/Add.1  
 
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  2.2.2   Footnote 241 (246) of Paragraph 7.81  
2.73.   The United States requests the Panel to modify footnote 241 (24 6) to this paragraph by 
including certain additional references, together with an explanation, in support of its argument that 
the USDOC had rejected Hyundai Steel's  claims of difficulty .106 Korea considers that the requested 
additions are not necessary.107 
2.74.   We have modified this footnote by adding the references proposed by the United States, but 
we do not consider it necessary to add any further explanatory text to these referen ces. 
2.2.3   Paragraph 7.100  
2.75.   The United States requests the Panel to modify this paragraph by including an additional 
argument in support of the United States'  position that there was no "necessary" information 
missing.108 Korea objects to this requ est, noting that the United States'  argument is already reflected 
in the Panel's  summary of arguments in this paragraph.109 
2.76.   We consider that the Panel's  summary of arguments properly reflects the 
United  States'  arguments on this issue. For this rea son, we are unable to accede to the 
United  States'  request.  
2.2.4   Paragraph 7.202  
2.77.   The United States requests the Panel to modify this paragraph by including an additional 
argument in support of the United States'  position that there was no "necessa ry" information 
missing.110 Korea objects to this modification, noting that this paragraph concerns the hot -rolled 
steel anti -dumping investigation, while the requested addition is an argument made by the 
United  States under the cold -rolled steel anti -dumping investigation.111 
2.78.   We are unable to accede to the United States'  request because this paragraph is in the section 
summarizing the parties'  arguments under the hot -rolled steel anti -dumping investigation, while the 
additional argument at issue, as Korea correctly points out, was made by the United States in the 
context of the cold -rolled steel anti -dumping investigation.112 
2.2.5   Paragraph 7.258  
2.79.   The United States requests the Panel to modify this paragraph in order to reflect the 
United  States'  argument that " necessary" information regarding whether POSCO received FEZ 
benefits was missing.113 Korea objects to this modification, noting that the Panel's  summary of the 
position of the United States is accurate and complete.114 
2.80.   We have modified the text of this paragraph for further clarity in light of the 
United  States'  request.  
_______________  
 
 
106 United States'  request for interim review, para. 2. 
107 Korea 's comments  on the United States'  request for interim review, p. 3. 
108 United States'  request for interim review, para. 3. 
109 Korea 's comments  on the United States'  request for interim review, p. 4. 
110 United States'  request for interim review, para. 4. 
111 Korea 's comments  on the United States'  request for interim review, p. 4. 
112 United States'  response to Panel question No. 12, para.  48 (referring to CRS supplemental 
Sections  B-C questionnaire, (Exhibit  USA-72 (BCI)),  p. 3). 
113 United States'  request for interim review, para. 5. 
114 Korea 's comments  on the United States'  request for interim review, p. 5. WT/DS539/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Korea  28 
Annex  B-2 Integrated executive summary of the arguments of the United States  41 
 
 WT/DS539/R/Add.1  
 
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  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF KOREA  
I. INTRODUCTION  
 
1. This dispute concerns the use of facts available and, more in particular, the use of adverse 
facts available (or "AFA") by the United States.  
 
2. Korea challenges the use of AFA "as applied" in six proceedings as inconsistent with the 
obligations of the U nited States under relevant provisions of the Agreement on the Implementation 
of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti -Dumping Agreement") and 
the Agreement on Subsidies and Countervailing Measures ("SCM Agreement"). In these  proceedings, 
the United States Department of Commerce ("USDOC") resorted to the use of facts available even 
though the conditions for such use were not met. The USDOC also failed to respect the disciplines 
relating to the application of facts available, a nd the information selected to replace the allegedly 
missing "necessary" information was not the best information available to reach an accurate 
determination, but rather information that was particularly adverse to the interests of the 
Korean  producers/ex porters under investigation. For these reasons, Korea submits the United States 
acted inconsistently with Article 6.8 and Annex II of the Anti -Dumping Agreement and Article 12.7 
of the SCM Agreement.  
 
3. Korea also demonstrated that the "all others" rate applied by the USDOC in the 
4th administrative review of the anti -dumping duties on Large Power Transformers ("LPT") from 
Korea was inconsistent with Article 9.4 of the Anti -Dumping Agreement. In particular, the USDOC 
failed to disregard the margins establ ished based on facts available pursuant to Article 6.8 of the 
Anti-Dumping Agreement when setting the rate for non -examined producers.  
 
4. In addition, Korea challenges the use of AFA "as such", as a rule or norm of general and 
prospective application and as a form of ongoing conduct, that violates the United States' obligations 
under the above -mentioned WTO Agreements. Indeed, the use of AFA in the challenged "as applied" 
proceedings are not stand -alone instances of violations of the relevant WTO obligatio ns, but rather 
reflect an ongoing conduct of resorting to the use of AFA, as a rule  or norm , whenever there is an 
alleged failure to cooperate to the best of a foreign producer or exporter's ability. Korea showed 
that, since August 2015, there are more tha n 300 proceedings that involve the use of AFA by the 
USDOC. In all these proceedings, the USDOC applied the AFA Rule or Norm, or AFA Ongoing Conduct, 
in a mechanistic manner and deliberately selected from the facts available on the record those facts 
that would lead to a result that was adverse to the interests of the foreign producer or exporter. In 
none of these cases did the USDOC undertake the required evaluation of the available facts in order 
to arrive at an accurate determination following a process of reasoning and evaluation. As soon as 
a determination of non -cooperation was made, the USDOC limited its search to finding those facts 
that would be adverse to the interests of the exporters concerned, rather than seeking to replace 
the allegedly missing  necessary information with the most accurate information on the record. 
Korea  presents relevant statistical information and substantive analysis of a sample of cases to 
support its "as such" claim in the first written submission.  
 
II. "AS APPLIED " CLAIMS  
 
II.1 ANTI-DUMPING DUTIES ON CERTAIN CORROSION -RESISTANT STEEL PRODUCTS FROM KOREA 
 
5. In the c orrosion -resistant steel products ("CORE") AD Investigation, the USDOC applied AFA 
to all further -manufactured sales because of an alleged failure by Hyundai Ste el to provide verifiable 
information to calculate a dumping margin for these sales. The application of AFA turned the 3 .51% 
anti-dumping margin from the preliminary determination into a 47.80% margin for the final 
determination. However, the resort to and application of AFA failed to comply with several disciplines 
under Article 6.8 and Annex II of the Anti -Dumping Agreement.  
 WT/DS539/R/Add.1  
 
- 29 - 
 
  6. First, Hyundai Steel applied its best efforts to respond to the unreasonably burdensome 
information requests by the USDOC concern ing its further -manufactured sales. Hyundai Steel 
provided timely and accurate information that was fully verifiable, including in particular all of the 
raw data on further -manufactured sales, which allowed the USDOC to apply whatever methodology 
it deemed  appropriate, including its standard methodology or any alternative methodology.  
 
7. The issue in this dispute related to the practical difficulty of applying the USDOC's standard 
methodology for dealing with further -manufactured sales. Indeed, the applica tion of the USDOC's 
standard methodology was virtually impossible because the only way to determine the constructed 
export price ("CEP") for the further -manufactured sales was to strip out all intermediate further -
manufacturing costs incurred for every ind ividual further -manufactured sale, each involving several 
companies incurring costs related to their respective handling and/or manufacturing activities, until 
only the value of the subject CORE remained. The USDOC was clearly aware of the problem, but 
failed to instruct how Hyundai Steel could have reported properly under the standard methodology.  
 
8. Hyundai Steel provided a ll its relevant raw data so that the USDOC could apply any alternative 
methodology, which allowed the USDOC to conduct the relevant a nalysis, including applying any 
alternative methodologies if it so wished. There was thus no "missing" necessary information, and 
Hyundai Steel applied its best efforts to cooperate and respond fully to the information requests. 
The conditions for resortin g to facts available under Article 6.8 were not met.  
 
9. Second, when applying facts available, the USDOC rejected verifiable information that had 
been appropriately submitted to the best of Hyundai Steel's ability in violation of paragraphs 3 and  5 
of Annex II. The USDOC also failed to identify the specific information it required and the manner in 
which that information should be structured as soon as possible after initiation of the investigation, 
as required by paragraph 1 of Annex II, and, even  if the USDOC were justified in rejecting the 
information ( quod non ), paragraph 6 requires that the interested party be informed thereof and be 
provided an opportunity to provide further explanations within a reasonable period. Both of these 
obligations we re violated. Indeed, the USDOC did not request a Section E response as soon as 
possible after the initiation of the investigation, and certainly did not provide specific instructions on 
which information it required and how this information had to be structured  in light of the practical 
difficulties encountered by Hyundai Steel.  
 
10. Third, in selecting the facts available to replace the allegedly missing information, the USDOC 
failed to engage in the requisite analysis of the record evidence to ensure that the selected 
information is the "best" information available, that "reasonably replaces" the missing data, so that 
an "accurate" determination is made . In fact, the USDOC relied on information from a secondary 
source, i.e. the petition, which it used without special circumspection and without corroboration. The 
USDOC decided to draw "adverse inferences" from the alleged non -cooperation of Hyundai Steel and 
its selection of facts available was thus made with a view to ensuring a less favorable result for 
Hyundai Steel. The petition margin used for AFA was aberrational and unrepresentat ive. The USDOC 
never sought to confirm the accuracy of the margin from the petition. Rather, the USDOC satisfied 
itself that this margin was reliable because it had allegedly reviewed the accuracy of the petition 
information at the time of initiation , although the enquiry under Article 6.8 is clearly different from 
that under Article 5.3 . In addition, the USDOC pointed to an isolated export transaction of coils in 
support of the relevance of the margin from the petition, completely ignoring the fact that th e 
average margin of such coil exports was found to be de minimis . In so doing, the USDOC resorted 
to the use of facts available in a punitive manner to penalize Hyundai Steel for its alleged lack of 
cooperation despite Hyundai Steel's best efforts to compl y with the USDOC's unreasonably 
burdensome requests.  
 
11. In conclusion, by resorting to and applying AFA in this manner, the USDOC acted inconsistently 
with Articles 6.8 and Annex II of the Anti -Dumping Agreement and, as a result, the imposition of 
duties  also violated Articles 1, 9.3, and 18.1 of the Anti -Dumping Agreement.  
 
II.2 ANTI-DUMPING DUTIES ON CERTAIN COLD-ROLLED STEEL FLAT PRODUCTS FROM KOREA 
 
12. In the Cold -Rolled AD Investigation, the USDOC applied AFA in respect of the following 
two issues ( i) alleged failure to demonstrate market value of certain service transactions provided 
by an affiliated company, and (ii) alleged misreporting of certain product sales. The application of 
AFA resulted in the USDOC turning a 2.17% anti -dumping margin in th e preliminary determination WT/DS539/R/Add.1  
 
- 30 - 
 
  into a 34.33% margin for the final determination. However, the resort to and application of AFA 
violated several disciplines under Article 6.8 and Annex II of the Anti -Dumping Agreement.  
 
II.2.1  Affiliate -service transactions  
 
13. First, in respect of the services provided by the related services provider, there was no basis 
to apply facts available given that no "necessary" information was missing. Hyundai Steel provided 
all the requisite informa tion to establish the arm's -length nature of its transactions with the affiliated 
service provider. The USDOC's questionnaire provided for alternative ways to demonstrate the 
arm's -length nature of the transactions, and Hyundai Steel was not in a position to compel the 
affiliate to furnish specific information about its contracts with third parties, but provided all relevant 
information at its disposal that, in line with the United States' guidance, should have sufficed to 
establish the market value of the services.  
 
14. Indeed, the affiliate outsourced many of the services to an unaffiliated service provider to 
which the affiliate added its own expenses and profit when charging Hyundai Steel for the services. 
This is one highly relevant indication of the a rm's-length nature of the price paid by Hyundai Steel 
for the services provided. In fact, in the preliminary determination, the USDOC accepted Hyundai 
Steel's reported freight expenses without adjustment , indicating that it found these to be on an 
arm's -length basis, and notified Hyundai Steel of no issues with respect to its submissions prior to 
verification. It was only at the last juncture of the investigation, i.e. the on -site verification, that an 
unwarranted and significantly expansive request was mad e for additional information. The specific 
information requested was clearly not "necessary" since other information was available to confirm 
the arm's -length nature of the transactions. Certainly, an investigating authority must not be allowed 
to convert at will any information that has not been submitted by respondents into "necessary" 
missing information. Not every piece of "requested" information is ipso facto  "necessary" 
information. This especially so when the USDOC confirmed the arm's -length nature o f the 
transactions based on other information, as confirmed by the preliminary determination.  
 
15. There was also no basis to consider that the good faith efforts made by Hyundai Steel to obtain 
proprietary information of a service provider with independen t third parties amounted to 
"significantly impeding the investigation" or "refusing access" to information. The conditions for 
resorting to the use of facts available were thus not met and USDOC 's contrary decision was 
inconsistent with Article 6.8 of the Anti-Dumping Agreement.  
 
16. Second, the USDOC failed to respect the relevant substantive disciplines for the application of 
facts available. T he record evidence confirms that Hyundai Steel acted to the best of its abilities in 
responding to the USDOC's i nformation requests, and the only information Hy undai Steel was unable 
to provide at the on -site verification pertained to one sub -element of the overall information on 
affiliated service transactions. T he USDOC could not have reasonably expected Hyundai S teel to be 
able to provide the information that was suddenly insisted on at the on -site verification  without any 
prior notice, as required by paragraph 1 of Annex II. Therefore, there was no basis to disregard all 
of the other, verifiable information that was provided by Hyundai Steel to confirm the arm's -length 
nature of the transactions, which could have been used without undue difficulties, as demonstrated 
in the preliminary determination. The USDOC's contrary decision was inconsistent w ith paragraphs  3 
and 5 of Annex II.  
 
17. Third, in selecting information for use as "facts available", the USDOC failed to engage in the 
requisite analysis of the record evidence to ensure that the selected information for the application 
of facts availabl e was the "best" information available, that "reasonably replace[d]" the missing data, 
so that an "accurate" determination was made. The USDOC simply rejected all of Hyundai Steel's 
expense data and  applied AFA asymmetrically by substituting the rejected d ata with (i) the lowest 
reported expense values to the entire home -market database (thus increasing the normal value); 
and (ii) the highest reported values to the U.S. database (thus reducing the export price). The sole 
reason for selecting this particular  information was its sufficiently adverse nature to the interests of 
Hyundai Steel.  
 
18. The fact that this information is derived from Hyundai Steel's reported data, but related to 
entirely different situations, does not mean that there was no need to ex amine the accuracy of this 
information as a substitute for the allegedly missing information. T here is a general obligation on 
investigating authorities to select information that reasonably replaces the missing information in 
question. This applies to eve ry selection of information for application as facts available, irrespective WT/DS539/R/Add.1  
 
- 31 - 
 
  of the source of that information. Thus, if information provided by an investigated producer/exporter 
is selected for facts available, the investigating authority must ensure that  this information is not an 
unreasonable  replacement or that it results in an inaccurate determination. In the Cold -Rolled 
AD Investigation, the USDOC applied AFA adjustments to all of Hyundai Steel's sales irrespective of 
the actual circumstances of the t ransactions. For example, the USDOC used as AFA information that 
was 28 times the reported freight amount,  and made AFA adjustments to transactions for which no 
freight were incurred, or for which Hyundai Steel used an unaffiliated service provider. Simila rly, for 
international freight, t he USDOC applied the highest rate by destination, thereby applying rates for 
container shipment whereas the vast majority of Hyundai Steel's shipments were made in bulk. The 
AFA adjustment was therefore aberrational and did  not relate to the factual circumstances of the 
sales. The USDOC also did not even attempt to consider other information that was readily available 
to it even though such information would certainly have constituted more reasonable replacements. 
The USDOC thus acted in violation of Article 6.8 and paragraph 7 of Annex II.  
 
II.2.2  Alleged misreporting of certain product sales  
 
19. First, in respect of the alleged misreporting of certain product sales, this is not a situation 
where any information was missing, but rather an alleged failure by Hyundai Steel to correctly report 
certain information under the proper classification. It al so concerned truly miniscule shares of total 
home -market and exports sales, and Hyundai Steel provided a reasonable explanation supporting 
the particular CONNUM classifications. Hyundai Steel's reporting was fully consistent with the 
USDOC's questionnaire requirements, namely to report CONNUM data on the basis of the physical 
coil as imported, and to report the product as sold in the United States in the PRODCODU field. 
Hyundai Steel's reporting was disclosed fully in its initial questionnaire response and the data, 
including instances where the CONNUM did not seem to match the PRODCODU, were on the record 
as of the initial response. The alleged missing information was clearly not "necessary" to complete 
the determination, and there was no basis for the USDO C to conclude that Hyundai Steel 
"significantly impeded" the investigation. T he USDOC never notified Hyundai Steel of any perceived 
deficiencies or anomalies in its submission. Nor did the USDOC take issue with Hyundai Steel's 
CONNUM reporting until the post-verification reports. There was thus no basis for resorting to facts 
available.  
 
20. Second, the USDOC failed to use all substantiated facts provided by Hyundai Steel that were 
on the record, and instead rejected the verified information for these CON NUMs and replaced them 
with adverse assumptions in violation of paragraphs 1, 3, 5, and 6 of Annex II. Indeed, the Hyundai 
Steel was never given an opportunity to address any perceived deficiencies , nor did the USDOC offer 
any assistance or guidance for re solving the differences. Rather, it was only in the verification reports 
that the USDOC identified a miniscule volume of U.S. and home -market sales that were considered 
to have inconsistent CONNUM data. There was no basis for the USDOC to reject the submit ted and 
verified information that was on the case record of the investigation, as the record evidence showed 
that Hyundai Steel applied its best efforts in timely submitting the requested information, and the 
USDOC also failed to use all substantiated fact s provided by Hyundai Steel that were on the record.  
 
21. Third, there was no process of reasoning and evaluation by the USDOC as to how or why the 
facts used for AFA were reasonable replacements for the allegedly missing information. Instead, the 
USDOC si mply assigned the highest -reported total cost of manufacturing for the home -market sales 
and the highest -calculated dumping margin for the U.S. sales, even applying these adverse 
assumptions to all other products of the same category, so as to lead to an a dverse result. In so 
doing, the USDOC applied AFA to CONNUMs verified as being accurately reported, and the 
information used had nothing to do with replacing "missing information", but with using aberrational 
data to ensure an adverse result in violation o f Article 6.8 and paragraph 7 of Annex II.  
 
22. There was alternative information available on the record that the USDOC could have used in 
order to reach an accurate determination as opposed to selecting information to punish Hyundai 
Steel. Irrespective o f the information chosen, the USDOC was under an obligation to select 
information that reasonably replaced the missing information to arrive at an accurate determination. 
This applies to every selection of information for application of facts available, ir respective of the 
source of that information. The USDOC failed to meet this obligation as it selected "facts available" 
on the sole basis of ensuring an adverse outcome, which is inconsistent with applicable 
WTO disciplines.  
 WT/DS539/R/Add.1  
 
- 32 - 
 
  II.2.3  Conclusion  
 
23. By reso rting to and applying AFA on this basis and in this manner in respect of the affiliated -
party transactions and the CONNUM issue, the USDOC acted in violation of Articles 1, 6.8 and 
Annex  II, 9.3, and 18.1 of the Anti -Dumping Agreement.  
 
II.3 COUNTERVAILING DUTIES ON CERTAIN COLD-ROLLED STEEL FLAT PRODUCTS FROM KOREA 
 
24. In the Cold -Rolled CVD Investigation, the USDOC resorted to AFA on the following 
three  grounds: (i) POSCO's alleged failure to report certain cross -owned input suppliers, (ii)  POSCO's 
alleged failure to report a facility located in a free economic zone ("FEZ"); and (iii) DWI's alleged 
failure to report the full use of a certain loan program. The application of AFA resulted in the USDOC 
turning a de minimis CVD rate in the preli minary determination into a CVD rate of 59.72 % for the 
final determination. However, the resort to and application of AFA violated Article 12.7 of the 
SCM Agreement.  
 
II.3.1  Cross -owned input suppliers  
 
25. First, POSCO did not refuse access to any necessa ry information. POSCO responded to the 
questionnaire that no affiliated company in Korea provided inputs to POSCO's production of subject 
merchandise. As a factual matter, and in light of the USDOC's practice of enquiring into affiliates 
that provide mater ials that are "primarily dedicated" to the production of the subject merchandise, 
this was an accurate, complete, and reliable response by POSCO. Importantly, the USDOC's question 
was not that POSCO report any input  provided by an affiliate that could be u sed in the production of 
the product. The alleged necessary missing information concerned minimal input amounts supplied 
by four out of around 150 cross -owned affiliates. This information was not relevant and thus certainly 
not "necessary" for the USDOC wh en examining subsidies received by POSCO. This information was 
not essential from the perspective of U.S. law and practice for the potential attribution of subsidies. 
Nor can POSCO be said to have significantly impeded the i nvestigation, as the evidence on  the record 
showed that, if any inputs had been provided, these inputs were insignificant in terms of the cross -
affiliates' total sales and POSCO's total cost -of-sales. Indeed, from the outset of the investigation, 
POSCO disclosed all of its cross -owned af filiates, including POSCO's majority share ownership in all 
of them. The value of the transactions with these cross -owned affiliates and the value of the 
transactions in relation to the cross -owned affiliates' sales were also on the record from the 
beginni ng. This information confirmed POSCO's consistent response that no affiliated company in 
Korea provided inputs "primarily dedicated" to the production of cold -rolled steel. Indeed, there were 
only trace amounts of certain inputs provided to POSCO that coul d be, but were not necessarily 
used, in the production of cold rolled steel during the POI.  
 
26. The sole reason why information on input suppliers could be relevant is that producers of the 
subject merchandise could benefit from indirect subsidies, as a result of passing through of subsidies 
to input suppliers. The U.S. rule on "primary dedication" m akes sense in this context, as authorities 
do not care about potential subsidies to marginal inputs into the production of the subject 
merchandise. In light of this rationale, nothing in the record, not even the alleged discovered 
information, supported a conclusion that necessary information was withheld or missing. Thus, 
including information about the four affiliates would not have affected any CVD determination given 
the truly insignificant amounts involved, and no possible subsidies to these affiliates  could have 
benefited POSCO.  
 
27. Second, the USDOC erred in the application of facts available by disregarding verifiable 
information that was appropriately submitted by POSCO and DWI to the best of their abilities. 
Relevant information about the four af filiate suppliers were readily available to the USDOC, as this 
was included in POSCO's affiliation chart and initial questionnaire response, including financial 
statements providing the v alue of POSCO's transactions with these cross -owned affiliates and th e 
value of the transactions in relation to the cross -owned affiliates' sales. This information proved that 
any inputs provided by these cross -owned entities were in trace amounts, and therefore not relevant 
for the USDOC when making a determination. The US DOC therefore had received timely, 
appropriately submitted, and  verifiable information from POSCO about the cross -owned affiliates, 
which it failed to consider . 
 
28. Third, the USDOC failed to engage in a process of reasoning and evaluation in its 
selection of facts available. It failed to examine which facts available on the record could reasonably WT/DS539/R/Add.1  
 
- 33 - 
 
  replace the alleged missing necessary information, and it did not seek  to corroborate the "facts" 
available that it decided to use. Instead, the selection of information by the USDOC was made with 
a view to obtaining a result that was sufficiently adverse  to the interests of POSCO, as opposed to 
making an accurate  determinat ion. On this basis, the USDOC found that POSCO benefitted from all 
subsidy programs in the investigation by virtue of the cross -owned affiliates, and applied rates from 
prior CVD proceedings involving Korea. There was no factual basis for  the determination  that the 
affiliates benefitted from all programs on the record, nor any explanation of how using this 
information ensured an accurate determination. However, Article 12.7 of the SCM Agreement 
permits using "facts" available to replace allegedly missing ne cessary information, not speculation 
about use of subsidy programs by other companies in a different context. When there are no facts 
to support that any affiliates received subsidies and, even more importantly, when the facts on the 
record confirm that th ese affiliates did not provide inputs in any material way such that there is no 
likelihood of any possible pass -through of the subsidies, an authority is no longer using "facts 
available" but engaging in unwarranted speculation.  
 
29. Moreover, in selecting  the AFA rates from prior proceedings, the USDOC did not even evaluate 
whether these rates were reasonable replacements. Instead, the USDOC selected particularly 
adverse information available to penalize POSCO for its alleged lack of cooperation. This is e vident 
from the USDOC assigning the highest -calculated rates possible for each subsidy program deemed 
countervailable without any further analysis of the accuracy of the information or the availability of 
better information on the record.  
 
II.3.2  FEZ facil ity 
 
30. First, POSCO stated throughout the investigation that it did not use or benefit from any FEZ 
subsidy programs. This was corroborated by the Government of Korea ("GOK") in its questionnaire 
response. There was never any necessary information missin g, as the USDOC had received 
information from both POSCO and the GOK that no FEZ programs were used. This was accurate 
irrespective of whether or not POSCO had an affiliate R&D center located in the FEZ, since there was 
no basis in the facts on the record to suggest that a non -foreign company such as POSCO could 
benefit from FEZ subsidies nor that the R&D center could be involved in the production of the subject 
merchandise. There was therefore no information missing and no basis to use facts available.  
 
31. Second, the USDOC also failed to use all substantiated facts on the record in respect of the 
FEZ programs. In fact, confirming POSCO's and the GOK's statements that POSCO was not eligible 
for any FEZ benefit would have been a simple and straightforward e xercise, had the USDOC opted 
to verify. There was abundant record evidence from multiple sources demonstrating that POSCO did 
not obtain any FEZ benefits, that POSCO was not eligible for any FEZ programs, and that the 
R&D facility in any event was not involved in the production of cold -rolled steel and, therefore, 
irrelevant to the USDOC's subsidy determination. However, all of this information was disregarded , 
and the USDOC did not even bother to verify the statements by POSCO and the GOK . 
 
32. Third, the USDOC failed to engage in a process of reasoning and evaluation in its selection of 
facts available. The selection of information by the USDOC was made with a view to obtaining a 
result that was sufficiently adverse  to the interests of POSCO, as oppose d to making an accurate  
determination. On this basis, the USDOC found that POSCO used two FEZ programs, although there 
was no factual basis for this finding.  
 
II.3.3  DWI loans  
 
33. First, DWI did not refuse access to, or otherwise failed to provide, any ne cessary information 
concerning the use of KORES loans. DWI responded timely to the joint initial questionnaire with 
POSCO, and attempted to supplement certain record facts upon learning of the additional KORES 
information. These corrections d id not introdu ce new factual information about an unknown subsidy 
program, as they merely completed information already provided on KORES, and they were filed in 
time for the USDOC to verify the information. The record facts speak clearly of DWI acting in good 
faith in attempting to provide a full and accurate response to USDOC's information requests. 
Accordingly, there was no basis to find that DWI impeded the investigation.  
 
34. In any event, the facts on the record confirm that DWI's use of certain KORES loans was 
entirely unrelated to POSCO's production of cold -rolled steel. This was evident from the mere title 
of the KORES loan programs, and by the repeated answers provided by POSCO/DWI that they do WT/DS539/R/Add.1  
 
- 34 - 
 
  not relate to the subject merchandise. There could be no subsidy be nefit from these loans attributed 
to the investigated product. The USDOC actually never found otherwise, and no information on the 
record, such as the verification that took place at DWI, provided any information to the contrary. 
Therefore, there were no s ubsidy benefits to be attributed to the production of cold -rolled steel from 
the DWI's use of KORES loans.  
 
35. Second, the USDOC failed to use all substantiated facts provided by DWI about the use of the 
KORES program that was on the record, and known fro m the start of the investigation based on its 
questionnaire responses. DWI's corrected data was also presented to the USDOC in time to be 
included as record evidence, but nonetheless was rejected by the USDOC. Indeed, the fact remains 
that the USDOC did no t even attempt to verify the veracity of the answers provided by POSCO/DWI.  
 
36. Third, the USDOC failed to engage in a process of reasoning and evaluation in its selection of 
facts available. It failed to examine which facts available could reasonably rep lace the alleged 
missing necessary information, and did not seek to corroborate the "facts" available that it decided 
to use. On this basis, the USDOC found that DWI's use of the KORES program was countervailable. 
There was no explanation by the USDOC abou t how this assumption, which had no factual basis on 
the record, could constitute a reasonable replacement to ensure an accurate determination.  
 
37. In sum, the USDOC's application of adverse facts available in relation to the cross -owned 
affiliates, the F EZ facility, and the minor corrections regarding the use of KORES loans was a punitive 
use of facts available that lacked any factual foundation on the record. In fact, applying the 59.72% 
subsidization rate used by the USDOC to total sales would mean that  POSCO received nearly 
USD 16 billion from the GOK – representing nearly 5% of the GOK's total budget or nearly four times 
its budget on diplomacy and unification. Such subsidy rates are obviously excessive and unrealistic. 
The United States fails to respo nd to the absurdity of the result of the USDOC's application of AFA. 
This absurd result was mainly driven by adversely inferring that four affiliated companies benefitted 
from 45 subsidy programs, when they at most provided de minimis  amounts of input mate rials that 
could  be used in the production of cold -rolled steel and absent any indication that they actually 
benefitted from any subsidies.  
 
II.3.4  Conclusion  
 
38. By resorting to and applying AFA on this basis and in this manner, the USDOC acted in violation 
of Article 12.7 of the SCM Agreement and its imposition of countervailing duties on this basis also 
violated Articles 10, 19.4, and 32.1 of the SCM Agreement.  
 
II.4 ANTI-DUMPING DUTIES ON CERTAIN HOT-ROLLED STEEL FLAT PRODUCTS FROM KOREA 
 
39. In the Hot-Rolled AD Investigation, the USDOC applied AFA in respect of an alleged failure by 
Hyundai Steel to demonstrate the arm's -length nature of certain service transactions with 
two affiliates. The application of AFA resulted in turning the 3.97% anti -dumping margin  in the 
preliminary determination into a 9.49% margin for the final determination. However, the resort to 
and application of AFA was inconsistent with several disciplines under Article 6.8 and Annex II of the 
Anti-Dumping Agreement.  
 
40. First, there was n o necessary missing information, and no failure to cooperate. In fact, 
Hyundai Steel provided information demonstrating the market value of its transactions with the 
affiliates so that the service -related information could be used without further adjustmen ts. 
Specifically, Hyundai Steel provided contracts with its affiliates, contracts the affiliates maintained 
with sub -contractors, and analyses comparing the different freight rates. This showed that the 
affiliates passed on the full costs plus profit to Hy undai Steel. Hyundai Steel even managed to obtain 
cost data from the affiliate service providers – on a transaction -specific basis – showing that their 
charges to Hyundai Steel exceeded their costs and allowed for a profit. Thus, this information 
confirmed  the arm's -length nature of the transactions.  
 
41. All this reported information was verified fully and successfully by the USDOC. In the 
preliminary determination, USDOC used this information without any suggestion that Hyundai Steel 
failed to provide any requested information or otherwise impeded the investigation. However, during 
the sales verification, the USDOC requested, for the first time, that all contract information between 
Hyundai Steel's affiliated service providers and their unaffiliated customers be provided. These are 
transactions with no connection to the USDOC's questionnaire requests concerning the product unde r WT/DS539/R/Add.1  
 
- 35 - 
 
  consideration or to Hyundai Steel, as they concerned service transactions not involving hot -rolled 
steel from Hyundai Steel. At the late stage of the investigation, i.e. at verification and without prior 
warning, Hyundai Steel tried but was unable to obt ain the requested information.  
 
42. Thus, the conditions for resorting to facts available were not met. The re was no "necessary" 
information missing that could have prevented the USDOC from making its determination. 
Hyundai  Steel provided all requested inf ormation in an accurate and timely manner, including 
information about its affiliate service providers and the arm's -length nature of these transactions. 
The non-specific, third -party information did not constitute "necessary" information within the 
meanin g of Article 6.8. There was also no basis to conclude that Hyundai Steel "significantly 
impeded" the investigation. Even if Hyundai Steel was unable to furnish the information in the 
surprise request at verification about its affiliates' third -party contra cts, the record confirms that 
Hyundai Steel acted to the best of its ability and provided the USDOC with all available 
documentation that confirmed the arm's -length nature of the transactions.  
 
43. Second, in applying facts available, the USDOC failed to s pecify in detail the information 
required as soon as possible after initiation of the investigation and also failed to provide a 
meaningful opportunity to Hyundai Steel to provide the information. The USDOC also failed to use 
all verifiable information and  substantiated facts that were on the record regarding the arm's -length 
nature of the affiliated service transactions. Indeed, g iven that Hyundai Steel acted to the best of 
its abilities, the USDOC was under an obligation to take into account all verifiabl e and substantiated 
facts provided by Hyundai Steel, even if the USDOC may have considered this information incomplete 
or not ideal.  
 
44. Finally, in selecting information to apply as facts available, the USDOC failed to engage in the 
necessary process of reasoning and evaluation to ensure the information used for facts available 
was the best information available to arrive at an accurate determination. The USDOC simply applied 
facts available with an adverse inference, and took the highest and lowest expen se values to increase 
normal value and reduce the export price, respectively, thus ensuring that the dumping margin was 
the highest possible. Even if this information derived from Hyundai Steel's data, and as such not 
"secondary source" information, the US DOC did nothing to ensure that the selected information was 
the best available information. For example, there was verified information on the record that 
demonstrated the actual  expenses incurred by Hyundai Steel for these affiliated service transactions.  
Nonetheless, the USDOC simply applied the highest/lowest value irrespective of context, thereby 
failing to provide the requisite reasoned and adequate explanation . The application of facts available 
was not objective or fair, but punitive in nature. Indee d, the basis for the selection was the USDOC's 
"standard practice" with a view to ensuring an adverse result.  
 
45. In conclusion, by resorting to and applying AFA on this basis and in this manner in respect of 
the affiliated -party transactions, the USDOC a cted in violation of Article 6.8 and Annex II, and the 
imposition of duties on this basis was thus also inconsistent with Articles 1, 9.3, and 18.1 of the 
Anti-Dumping Agreement.  
 
II.5 COUNTERVAILING DUTIES ON HOT-ROLLED STEEL FLAT PRODUCTS FROM KOREA 
 
46. In the Hot-Rolled CVD Investigation, the USDOC applied AFA for the following three issues: 
(i) POSCO's alleged failure to report certain cross -owned input suppliers, (ii) POSCO's failure to 
report a facility located in a FEZ, and (iii) DWI's alleged fa ilure to report the full use of a certain loan 
program. Through the application of AFA, the USDOC turned the de minimis CVD rate from the 
preliminary determination into a 58.68% rate in the final determination. However, the resort to and 
application of AFA  violated Article 12.7 of the SCM Agreement.  
 
II.5.1  Cross -owned input suppliers  
 
47. First, there was no necessary information missing and POSCO did not refuse access to any 
information, as it provided all relevant information about its relevant cross -owned affiliates within a 
reasonable period of time that allowed the USDOC sufficient tim e to verify. Over a month before 
verification, POSCO submitted certain clarifications, based on perceived concerns of the USDOC from 
the Cold -Rolled CVD Investigation, that it had affiliates providing negligible amounts of inputs that 
could potentially be used in production of hot -rolled steel. It was clearly explained that none of these 
affiliates provided inputs "primarily dedicated" to the subject merchandise. Thus, this information 
did not constitute "necessary" information, and was not essential from t he perspective of U.S. law WT/DS539/R/Add.1  
 
- 36 - 
 
  and practice for the potential attribution of subsidies. Nor can POSCO be said to have significantly 
impeded the i nvestigation, as it submitted all relevant evidence in time for verification, which also 
showed t hat any inputs pro vided were negligible and insignificant in terms of the cross -affiliates' 
total sales and POSCO's total COP. It was the USDOC that refused to accept such information, and 
thus deprived itself of the very information it claimed to be necessary.  
 
48. Second,  the USDOC erred in the application of facts available by disregarding verifiable 
information that was appropriately submitted by POSCO and DWI to the best of their abilities. 
Relevant information about the four affiliate suppliers was readily available to  the USDOC from the 
outset in POSCO's affiliation chart and initial questionnaire response. Additional information was 
offered in submissions made more than a month prior to verification which further clarified that any 
inputs provided by the affiliates we re in insignificant amounts and, therefore, not relevant to the 
USDOC's determination. Thus, the USDOC received timely, appropriately submitted, and  verifiable 
information from POSCO about the cross -owned affiliates, which it failed to use.  
 
49. Indeed, i nformation was volunteered by POSCO in sufficient time before verification, but it 
was consistently rejected by the USDOC for formalistic, procedural reasons such as that it 
represented "unsolicited" information that were submitted "after the deadline". Ho wever, if 
information is considered "necessary" and submitted in time for it to be verified, it constitutes 
"verifiable" information that must be accepted and used. This is so even if the information is formally 
submitted after an investigating authority's  deadlines.  
 
50. Third, the USDOC improperly and punitively resorted to AFA to fill the alleged gaps of 
necessary information. It failed to engage in a process of reasoning and evaluation of which facts 
that would reasonably replace the alleged missing nec essary information to arrive at an accurate 
determination, as well as to corroborate the "facts" available and apply the selected information with 
special circumspection. Instead, the application of AFA was made with the view to obtain a 
sufficiently adver se result to the interests of POSCO. On this basis, the USDOC found that POSCO 
benefitted from all subsidy programs in the investigation by virtue of the cross -owned affiliates.  
 
II.5.2  FEZ facility  
 
51. First, POSCO also stated throughout the investigation that it did not use or benefit from any 
FEZ programs, which was corroborated by the GOK's questionnaire response. There was never any 
necessary information missing, nor did POSCO significantly impede th e investigation, as the USDOC 
received timely and accurate information from both POSCO and the GOK that no FEZ programs were 
used. Any concerns the USDOC had about a possible R&D center being located in the FEZ could have 
easily been verified, but USDOC pr eferred not to do so.  
 
52. Second, The USDOC also failed to use all substantiated facts on the record concerning the use 
of FEZ programs. There was abundant record evidence from multiple sources demonstrating that 
POSCO did not obtain any FEZ benefits, th at POSCO was not eligible for any FEZ programs, and that 
the R&D facility was not involved in the production of hot -rolled steel, and therefore irrelevant to 
the USDOC's determination. But, all of this information was disregarded. The same reasons of 
untim eliness led to the rejection of the clarifications offered by POSCO well before verification. The 
failure to use the verifiable information on the record meant that USDOC's application of facts 
available was based on non -factual assumptions and speculation . 
 
53. Third, the USDOC failed to engage in a process of reasoning and evaluation in its selection of 
facts available. It failed to examine which facts available reasonably replace the alleged missing 
necessary information, and did not seek to corroborate the "facts" available that it decided to use. 
Instead, the application of AFA was made with the view to obtaining a sufficiently adverse  result to 
the interests of POSCO. On this basis, the USDOC found that  POSCO benefitted from two FEZ 
programs.  
 
II.5.3  DWI loan  
 
54. First, DWI did not refuse access to, or otherwise failed to provide, any necessary information 
concerning the use of KORES loans. DWI responded timely to the joint initial questionnaire with 
POSCO, and before verification attempted to suppleme nt certain record facts upon learning of 
additional KORES information. These corrections only sought to clarify and supplement the initial 
response, but d id not introduce new factual information about an unknown subsidy program. WT/DS539/R/Add.1  
 
- 37 - 
 
  Accordingly, there was no b asis to find that DWI impeded the investigation. In any event, DWI's use 
of certain KORES loans was entirely unrelated to POSCO's production of hot -rolled steel; thus, there 
could be no subsidy benefit from these loans attributed to the investigated produc t. 
 
55. Second, the USDOC failed to use all substantiated facts provided by DWI about the use of the 
KORES program that was on the record, and known from the start of the investigation based on its 
questionnaire responses, as well as supplemented for furth er clarification before the verification. 
There was no basis for the USDOC to reject the data submitted by DWI.  
 
56. Third, the USDOC failed to engage in a process of reasoning and evaluation in its selection of 
facts available, as well as to corroborate t he "facts" available and apply the selected information 
with special circumspection. Instead, the application of AFA was made with the view to obtaining a 
sufficiently adverse  result to the interests of POSCO. On this basis, the USDOC found that DWI's use 
of the KORES program was countervailable. There was no explanation by the USDOC of how or why 
these assumptions, which had no factual basis on the record, constituted reasonable replacements 
to ensure accurate determinations.  
 
57. In fact, the punitive nature of the use of facts available is confirmed by the significant increase 
in POSCO's CVD rate from 0.17% in the preliminary determination to 58.68% for the final 
determination. In fact, applying the 58.68% to POSCO's total sales w ould mean that POSCO received 
nearly USD 16 billion from the GOK – representing nearly 5% of the GOK's total budget or nearly 
four times its budget on diplomacy and unification. Such subsidy rates are obviously excessive and 
unrealistic.  
 
II.5.4  Conclusion  
 
58. By resorting to and applying AFA on this basis and in this manner, the USDOC acted in violation 
of Article 12.7 and its imposition of countervailing duties was thus inconsistent with Articles 10, 19.4, 
and 32.1 of the SCM Agreement.  
 
II.6 ANTI-DUMPING DUTIES ON LARGE POWER TRANSFORMERS FROM KOREA 
 
59. In the Large Power Transformers ("LPTs") from Korea, the USDOC applied AFA in several 
phases of the proceeding. Beginning with the final results for POR3 and extending through the 
preliminary results for POR5, including reconsideration of the final results for POR2, the USDOC has 
systematically applied AFA. However, the resort to and application of AFA violated several disciplines 
under Article 6.8 and Annex II of the Anti -Dumping Agreement.  
 
II.6.1  POR2  
 
60. The USDOC resorted to the use of AFA in relation to Hyundai Heavy Industries' ("HHI") 
reporting of service -related revenue, as part of the export price. There was no definition of such 
service -related revenue, thus HHI explained that it bas ed its reporting on a methodology previously 
accepted by the USDOC, which was in the POR2 final results. It was only later that the USDOC 
abandoned the previously -accepted definition, and issued a re -determination finding that HHI failed 
to provide all nec essary information that warranted application of AFA. However, there was no basis 
to resort to facts available, and the USDOC's application of AFA violated relevant disciplines of the 
Anti-Dumping Agreement.  
 
61. First, the USDOC clearly did not lack "necessary" information  with respect to service -related 
revenue of HHI's sales. In accordance with the USDOC's accepted definition of service -related 
revenue applied throughout the POR2 review, HHI correctly reported such services as part of the 
LPT sales price. Even the USDOC itself found that no necessary information was missing, or that HHI 
withheld requested information. Problems arose during the POR2 remand because the USDOC 
completely changed the definition of service -related revenue. Thus, to the ext ent "necessary 
information" was missing, it was due to the failure of the USDOC to meet its obligations of informing 
HHI of this change in approach.  
 
62. Second, the USDOC failed to use verifiable information on the record and, thus, its application 
of fac ts available was based on non -factual assumptions and speculation. The USDOC found that 
there was information on the record, which enabled it to apply the standard capping methodology. 
The USDOC was under an obligation to use this record information, but i nstead completely WT/DS539/R/Add.1  
 
- 38 - 
 
  disregarded the information and resorted to adverse facts alleged by the petitioner . However, t he 
information was verifiable, appropriately submitted so that it could be used without undue 
difficulties, as confirmed by the fact that the s ame type of information had been used before. In 
addition, there was no basis for considering that HHI did not act to the best of its ability, and thus 
there was no basis of the USDOC disregarding the information provided.  
 
63. Third, when selecting inform ation for application of AFA, the USDOC failed to engage in the 
necessary process of reasoning and evaluation supporting the decision why the highest calculated 
difference between HHI's reported service -related expenses and service revenues was a reasonabl e 
replacement for the allegedly missing information . There was no reasoned  explanation  from the 
USDOC , let alone the required comparative evaluation, as to how and why the USDOC's adverse 
inference was the best information available to fill the alleged mis sing information , resulting in an 
AFA margin that was over six times the margin assigned to HHI in the original POR2 Final Results. 
Rather, the information was selected to ensure a sufficiently adverse result to HHI.  
 
64. By resorting to and applying facts  available in this manner in POR2, the USDOC acted 
inconsistently with Articles 6.8, and Annex II of the Anti -Dumping Agreement and thus its imposition 
of duties on this basis also violated Articles 1, 9.3 and 18.1 of the Anti -Dumping Agreement.  
 
II.6.2  POR3 
 
65. In POR3, the USDOC resorted to the use of AFA in relation to HHI based on four reasons, 
namely that HHI: (i) should have reported service -related revenues separately from the gross unit 
price; (ii) failed to include the price of a single subject pa rt in the price for a home -market sale of 
four LPTs; (iii) failed to separately report the price and costs for accessories; and  (iv) was 
systematically selective in providing various documents to the USDOC and that there were 
discrepancies in the reported data. However, none of these reasons justified the USDOC's resort to 
facts available, and the USDOC's application of total AFA also violated relevant disciplines of the 
Anti-Dumping Agreement.  
 
66. First, n one of the four concerns raised by the USDOC supported the conclusion that 
"necessary" information was missing or that HHI significantly impeded the administrative review, as 
HHI had timely provided verifiable data. Thus, the requested information was on t he record, and the 
significant efforts by HHI demonstrate that it cooperated to the best of its ability in the proceeding.  
 
67. Second, in terms of applying facts available in POR3, the USDOC completely rejected all of 
the timely, verifiable, and substanti ated facts submitted by HHI. The USDOC was under an obligation 
to use this record information, but instead completely disregarded the information and resorted to 
adverse facts alleged by the petitioner.  
 
68. Third, when selecting information for applicatio n of AFA, the USDOC failed to engage in the 
necessary process of reasoning and evaluation as to how or why total AFA was a reasonable 
replacement for the alleged missing information concerning the four issues. In particular, the  USDOC 
failed to corroborate  why the petition information for use as total AFA was the best information 
available to arrive at an accurate  determination. The only explanation for the selection of the petition 
rate was that "the highest transaction -specific rate related to sales by Hy osung" exceeded the 
petition margin, and that the petition information had been reviewed and found to be adequate 
during the "pre -initiation analysis". However, this explanation does not conform to the obligation to 
apply information for facts available wi th special circumspection. Indeed, the fact that one 
aberrational margin of another producer  is higher than the highest petition margin is not a 
reasonable and consistent way of testing the accuracy of the information to be used for facts 
available. Simila rly, simply considering the petition information was reliable and suitable for initiating 
the investigation does not satisfy this standard. The different procedural and substantive 
requirements for information to be sufficient to initiate the investigation  under Articles 5.2 and 5.3 
of the Anti -Dumping Agreement, on the one hand, and for making a final determination following an 
investigation under Article 6.8, on the other, confirm that such reliance on the limited test applied 
at initiation is insufficien t. Thus, t he USDOC's selection of information for facts available in POR3 
was done to ensure that the result was adverse rather than accurate.  
 
69. By resorting to and applying facts available in this manner in POR3, the USDOC acted 
inconsistently with Art icles 1, 6.8, 9.3, 18.1, and Annex II of the Anti -Dumping Agreement.  WT/DS539/R/Add.1  
 
- 39 - 
 
  II.6.3  POR4  
 
70. In POR4, the USDOC resorted to the use of total AFA in relation to both HHI and Hyosung. As 
in POR3, the USDOC relied on minor issues to justify its finding of total AFA. In r elation to HHI, total 
AFA was applied based on the allegations that HHI (i) faile d to report separately the prices and costs 
of "accessories";  (ii) understated home -market gross unit prices because it did not report 
revenue  for a single part; and  (iii) failed to disclose a supposed affiliation with a US sales agent. In 
relation  to Hyos ung, the USDOC applied total AFA alleging that Hyosung failed to (i) r eport service -
related revenue on its order acknowledgment forms;  (ii) explain how an invoice covered multiple 
sales over multiple periods of review ; and (iii) report certain discounts an d price adjustments shown 
on its sales invoices. However, none of these reasons justified the USDOC's resort to facts 
available,  and the USDOC's application of total AFA also violated relevant disciplines of the Anti -
Dumping  Agreement.  
 
71. First, n one of  the concerns raised by the USDOC with respect to HHI and Hyosung supported 
the conclusion that "necessary" information was missing or that the Korean exporters significantly 
impeded the administrative review. The exporters did their outmost to provide the  requested 
information in a timely manner. And, the alleged missing information was not in any way "necessary" 
information  for the USDOC  to complete its determination. There was also no basis to conclude that 
the exporters failed to cooperate to the best o f their abilities given that verifiable, timely, and correct 
information were provided . 
 
72. Second, in terms of applying facts available in POR4, the USDOC again unduly disregarded 
timely, verifiable, and substantiated information  on the record when it ap plied AFA with respect to 
HHI and Hyosung. The USDOC was under an obligation to use this record information, but instead 
completely disregarded the information and resorted to adverse facts alleged by the petitioner.  
 
73. Third, the USDOC's selection of in formation for application of total AFA in relation to both HHI 
and Hyosung was inconsistent with applicable disciplines of the Anti -Dumping Agreement , because 
the USDOC failed to engage in the requisite process of reasoning and evaluation as to how or why 
total AFA was a reasonable replacement for the alleged missing information. In POR4, the USDOC 
relied simply on analysis made in POR3 to corroborate the use of the petition margin for total AFA. 
By doing so, t he USDOC built further on the error in POR3 in the context of POR4. The USDOC's 
application of AFA was also not objective or fair, but effectively punitive in nature; particularly 
adverse information was selected effectively to punish HHI and Hyosung.  
 
74. In sum, b y resorting to and applying facts available in this manner in POR4, the USDOC acted 
inconsistently with Articles 6.8 and Annex II, and the imposition of duties on this basis thus also 
violated Articles 1, 9.3 and 18.1 of the Anti -Dumping Agreement.  
 
75. In addition, the United States  acted inconsistently with Article 9.4 of the Anti -Dumping 
Agreement in POR4 by calculating the "all others" rate by relying on margins established using facts 
available. Alternative, reasonable methodologies were available to the USDOC to calculate the "a ll 
others" rate, such as relying on the margins assigned to these producers in prior reviews. However, 
the USDOC calculated the margin for the non -selected Korean producers based on information 
derived from applying facts available, and therefore violated Article 9.4 . 
 
III. "AS SUCH" CLAIMS – AFA  RULE OR NORM, AND/OR AFA  ONGOING CONDUCT  
 
76. The use of AFA by the USDOC in situations of non -cooperation is a rule or norm of general 
and prospective application, or a form of ongoing conduct, given its repeated application and the 
likelihood that it will continue in the future. In cases of alleged non -cooperation, the USDOC does 
not engage in a process of reasoning and evaluation of the facts on the record to arrive at an accurate 
determination, but rather select s from among the facts available those facts that would lead to an 
adverse result.  
 
77. The precise content of the AFA Rule or Norm , or AFA Ongoing Conduct, both in terms of what 
it involves (i.e. the selection of "adverse" facts available triggered by the procedural circumstance 
of non -cooperation) is clear from the stati stics presented by Korea as well as from the practice of 
the USDOC , and is confirmed by the US courts. The drawing of adverse inferences in this manner is 
the USDOC's "standard practice ", based on the text of Section 776 of the Tariff Act, as amended by WT/DS539/R/Add.1  
 
- 40 - 
 
  Section 502 of the 2015 TPEA. The drawing of such adverse inferences is also reflected in USDOC 
determinations presented by Korea, and in judgments of U.S. courts recognizing  this practice.  
 
78. The statistics submitted by Korea confirm that, under the AFA Rule or Norm, or AFA Ongoing 
Conduct, whenever a finding of failure to cooperate is made, the USDOC draws adverse inferences 
and selects facts that are sufficiently adverse  rather than accurate to replace the allegedly missing 
information. The AFA Rule or Norm, or AFA Ongoing Conduct, applies mechanistically in all cases 
without the USDOC undertaking any comparative evaluation and assessment of whether the 
selection of facts  available in light of all substantiated facts on the record leads to an accurate 
determination. Therefore, this AFA Rule or Norm, or AFA Ongoing Conduct, is inconsistent with the 
obligations imposed by Article 6.8 and Annex II of the Anti -Dumping Agreemen t and Article 12.7 of 
the SCM Agreement.  
 
79. A substantive review of USDOC determinations since the 2015 TPEA amendments further 
confirms this lack of proper evaluation. In this period, the USDOC resorted to the use of AFA in more 
than 300 cases. In all of these cases, there was a substantive finding by the USDOC that the 
interested parties in question failed to cooperate followed by the use of AFA. Korea also notes there 
are about 200 references in these more than 300 cases referring to the term "practic e" when 
resorting to AFA, as well as a number of references to the use of AFA as a "rule".  
 
80. However, irrespective of the number of times the USDOC refers to its own use of AFA as a 
"practice" or "rule", the fact that such rule, norm, or ongoing conduct  exists is clear. The use of AFA 
is not something that is determined on a case -by-case basis with the USDOC sometimes applying 
AFA after having made a finding of non -cooperation and on other occasions not doing so. These 
statistics corroborate, therefore, Korea's claim that non -cooperation equa ls the use of AFA, which in 
turn results in the use of information that is sufficiently adverse to the interests of the interested 
party, rather than accurate.  
 
81. Moreover, as the substantive analysis of the representative sample of 12 cases out of the 
most "conservative" 90 cases show (i.e. filtering out NME cases, and complete lack of participation), 
the selection of adverse facts available under the AFA Rule or Norm, or AFA Ongoing Conduct, does 
not ensure that an accurate determination is made followi ng a comparative evaluation of the record 
facts so as to find the best information available. Rather, the reason for the selection of the facts 
available is that they are sufficiently adverse to the interest of the producer or exporter in question. 
It also  becomes clear from these cases that the USDOC may collect data, or even check for 
anomalies, aberrations, or the need for adjustments, but that it never engages in the required 
comparative evaluation and assessment to ensure that the facts used to replace  the allegedly 
missing information will lead to an accurate determination, in violation of Article 6.8 and Annex II of 
the Anti -Dumping Agreement and Article 12.7 of the SCM Agreement.  
 
82. Whereas all investigating authorities will draw inferences from th e record facts of a 
proceeding, that is not what the USDOC does when it resorts to and applies AFA. Rather, whenever 
it makes a finding of non -cooperation, that door closes and another door opens that is based on 
finding facts that are sufficiently adverse  to the interests of the interested party in question without 
any process of reasoning or evaluation to determine whether these facts reasonably replace the 
missing information or lead to an accurate determination, and without consideration of the specific  
reasons that led to the finding of non -cooperation.  
 
83. In addition, Korea provided examples of three specific iterations of the United States' AFA 
Ongoing Conduct, which are applied mechanistically and without further evaluation of the accuracy 
of the facts selected. These specific methodologies are geared to reach an adverse result rather than 
an accurate result, and further support Korea's demonstration that the AFA Ongoing Conduct is "as 
such" inconsistent with the Anti -Dumping Agreement and, where r elevant, the SCM Agreement.  
 
84. In sum, Korea demonstrated that the AFA Rule or Norm, or AFA Ongoing Conduct, are 
inconsistent "as such" with Article 6.8 and Annex II of the Anti -Dumping Agreement and Article 12.7 
of the SCM Agreement. The United States i s demonstrably unable to refute the prima facie  case of 
"as such" violation that Korea has established in this dispute.  
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE  ARGUMENTS  
OF THE UNITED STATES  
EXECUTIVE SUMMARY OF US FIRST WRITTEN S UBMISSION  
 
I. INTRODUCTION  
1. Korea launched this massive dispute to challenge disparate issues in six anti -dumping 
proceedings and two countervailing duty proceedings. To the extent that there is any relationship 
between the various issues raised by Korea, it is that in each case a sophisticated, well -represented 
Korean respondent made repeated decisions not to cooperate with clear and repeated requests for 
information from the United States Department of Commerce ("USDOC" , "Commerce" , or "the 
Departm ent"), and as a result, the Korean companies were unsatisfied with the final results reached 
by USDOC in each of the proceedings.  
2. In essence, Korea is asking the panel to conduct a de novo  review of each of the challenged 
determinations, in an attempt to attain modifications of objective and unbiased USDOC 
determinations.  The Korean companies were well aware that refusal to cooperate in an 
administrative proceeding may have consequences.  
3. Korea's panel request also purports to challenge unwritten mea sure as inconsistent "as such" 
with Article 6.8 and Annex II of the Anti -Dumping Agreement and Article 12.7 of the SCM Agreement. 
However, as explained in the U.S. preliminary ruling request, Korea's panel request failed to specify 
the unwritten measure Ko rea purports to challenge. Accordingly, no measure subject to an as such 
challenge is within the Panel's terms of reference. No subsequent submission can cure this 
deficiency.  
II. KOREA HAS FAILED TO ESTABLISH THAT USDOC'S APPLICATION OF FACTS 
AVAILABLE W AS INCONSISTENT WITH ARTICLE 6.8 AND PARAGRAPHS 1, 3, 5, 6 
AND 7 OF ANNEX II OF THE ANTI -DUMPING AGREEMENT  
4. Korea argues that USDOC's use of facts available in its calculations of antidumping duty 
margins in the Cold -Rolled Steel, Hot -Rolled Steel, and C orrosion -Resistant Steel investigations, and 
Large Power Transformers administrative reviews was inconsistent with Article 6.8 or Annex II of 
the Anti -Dumping Agreement. In each proceeding, USDOC acted in accordance with Article 6.8 and 
Annex II of the Ant i-Dumping Agreement by selecting a reasonable replacement for necessary 
information that was missing from the record due to the responding companies' failure to cooperate.  
A. USDOC's Application of Facts Available in the Investigation of Corrosion -Resista nt 
Steel (CORE) Was Consistent with Obligations under the Anti -Dumping Agreement  
 
5. Korea fails to demonstrate that USDOC's application of facts available in the LTFV Investigation 
of corrosion resistant steel (CORE) was inconsistent with Article 6.8 or A nnex II of the Anti -
Dumping  Agreement. The record shows that USDOC provided Hyundai Steel multiple opportunities 
to respond adequately to its requests for information, relied on facts available where necessary 
information was missing from the record, and s elected reasonable replacements from among 
Hyundai Steel's own reported information. Thus, Korea has no basis for arguing that USDOC's 
application of facts available was inconsistent with Article 6.8 and Annex II.   
6. Korea's claim that the information on  further -manufactured sales requested by USDOC was 
not "necessary" and claims of difficulty are unsupported by the record. Similarly, Korea's allegations 
that USDOC failed to specify the requested information within the guidelines established by 
Article  6.8 and paragraph 1 of Annex II grossly mischaracterize the record facts. The record 
demonstrates that USDOC informed Hyundai as soon as possible that a response may be necessary, 
specified in detail the necessary information it was requesting, provided Hyun dai with clarifications 
and additional guidance, and provided Hyundai with a reasonable period of time to respond.  WT/DS539/R/Add.1  
 
- 42 - 
 
  7. Korea's claims that USDOC failed to provide a meaningful opportunity to provide further 
explanations and failed to give reasons for reject ing the information provided have no merit. The 
record also shows that USDOC properly determined it could not verify Hyundai's information and 
acted in accordance with both paragraph 3 and paragraph 5 of Annex II of the Anti -
Dumping  Agreement. Additionally , the record demonstrates that USDOC properly determined that 
Hyundai did not act to the best of its ability in responding to USDOC's requests for information. 
Moreover, USDOC used special circumspection in selecting from the facts available, properly 
corroborated the replacement information, and selected reasonable replacements for the missing 
necessary information, in accordance with its obligations under Article 6.8 and paragraph 7 of 
Annex  II of the Anti -Dumping Agreement.   
B. Korea Failed to Establish  Any WTO Inconsistency in USDOC's Application of Facts 
Available in the LTFV Investigations of Imports of Cold Rolled Steel (CRS) and 
Hot Rolled Steel (HRS)  
 
8. Regarding the CRS and HRS investigations, Korea has failed to demonstrate that USDOC failed 
to comply with the requirements of Article 6.8 and Annex II when resorting to the use of facts 
available in filling the gaps created by Hyundai with respect to affiliated service providers and missing 
CONNUM data. The records shows that Hyundai failed to prov ide necessary information relating to 
the arm's length nature of its transactions with its affiliated service provider.  Accordingly,  USDOC 
was unable to verify the arm's length nature of the transactions. Korea's argument that it provided 
USDOC with the in formation to calculate any necessary arm's length adjustments, and that the 
information was verified by USDOC without issue, sidesteps the issue. The question is not whether 
Hyundai correctly reported its expenses for the transactions with the affiliated p arty, but rather 
whether those transactions were at arm's length.  
9. Similarly, USDOC determined that because of all of the errors and inconsistencies identified 
in Hyundai's reported CONNUMs, it could not rely on the reported information for those classe s of 
products. Based on the errors and inconsistencies contained in Hyundai's databases, USDOC made 
an unbiased and objective determination to disregard the information Hyundai submitted and resort 
to facts available. Korea has failed to show that the Anti -Dumping Agreement requires anything 
different.  
10. The record demonstrates that USDOC properly determined that Hyundai failed to cooperate 
to the best of its ability in the investigations. Additionally, USDOC selected reasonable replacements 
for the miss ing information by relying on data Hyundai itself provided. Korea's assertion that USDOC 
acted inconsistently with Article 6.8 and paragraph 7 of Annex II when selecting the replacements 
for the missing necessary information on the record has no merit. Kor ea similarly argues that 
USDOC's selected facts resulted in a determination that was "punitive in nature" . However, t hat the 
outcome is less favorable than Korea would have liked does not mean the application of facts 
available was punitive or otherwise in consistent with Article 6.8 and Annex II.  
C. Korea Failed to Establish that USDOC's Application of Facts Available Regarding 
Certain Administrative Reviews on Large Power Transformers (LPTs) Was 
Inconsistent with Article 6.8 and Annex II of the Anti -Dumpin g Agreement  
11. Korea claims that USDOC acted inconsistently with Article 6.8 and Annex II of the 
Anti-Dumping Agreement in resorting to the use of facts available in the course of several 
determinations made concerning the antidumping duty order on large power transformers from 
Korea with respect to Hyundai Heavy Industries ("HHI" or "Hyundai") and Hyosung Corporation 
("Hyosung").   
1. Second Administrative Review on LPTs  
12. Korea argues that in using facts available, USDOC did not meet the conditions for resorting to 
facts available, failed to use verifiable information on the record, based its determination on 
non-factual assumption and speculation, and failed to engage in the necessary process of reasoning 
and evaluation in demonstrating how its selection of replacement information was reasonable. 
However, Korea's arguments are unsupported by the evidence and fail to demonstrate an 
inconsistency with Article 6.8 and Annex II of the Anti -Dumping Agreement.  WT/DS539/R/Add.1  
 
- 43 - 
 
  13. The record shows that as necessary information was missing from the record regarding HHI's 
service -related revenues and because HHI significantly impeded the proceeding by failing to report 
the necessary information relating to its service -related revenues, USDOC appropriately resorted to 
using the facts otherwise available pursuant to Article 6.8 and Annex II. Additionally, HHI did not 
act to the best of its a bility in responding to USDOC's requests for information. Record evidence 
indicates that HHI possessed the information necessary to report specific service -related revenues 
for specific service -related expenses, but failed to do so, despite USDOC's request  for the 
information.  
14. Finally, Korea's argument that USDOC's selected replacement information was somehow 
"punitive" is without merit. That the outcome is less favorable than Korea would have liked does not 
mean the application of facts available is i nconsistent with Article 6.8. Indeed, USDOC replaced the 
missing information  with record information based on HHI's own purchase orders. This information 
was a reasonable replacement for the missing necessary information, given its relevance and 
reliabilit y, and is consistent with Article 6.8 of the Anti -Dumping Agreement.  
2. Third Administrative Review on LPTs  
15. Korea fails to demonstrate that USDOC's determination that HHI failed to cooperate by not 
acting to the best of its ability in providing the De partment with necessary information in a timely 
manner was inconsistent with Article 6.8 and Annex II of the Anti -Dumping Agreement. The record 
shows, and as Commerce explained, HHI: (1) overstated U.S. price by failing to report separately 
service -related  revenues, which prevented USDOC from deducting excess revenue amounts from 
HHI's reported U.S. price in accordance with domestic law; (2) understated its home market price 
by excluding a part that is required to assemble a complete large power transformer  from its reported 
gross unit price in the home market; (3) failed to separately report the price and cost for accessories 
and; (4) had been systematically selective in providing various documents to the Department, 
thereby impeding the course of the revie w.    
16. Considering the totality of HHI's failure to report separately service -related revenues and 
expenses, failure to adequately explain its exclusion of a certain subject part from its home market 
gross unit prices, failure to report separately the p rices and costs of "accessorie s", and collective 
failure to provide complete sales documentation, USDOC appropriately satisfied the conditions 
necessary to resort to facts available. Korea has not otherwise provided any evidence to the contrary, 
and, there fore, fails to demonstrate an inconsistency with Article 6.8 and Annex II of the 
Anti-Dumping Agreement.  
17. Additionally, as USDOC determined that HHI failed to act to the best of its ability, its rejection 
of HHI's reported information was not inconsist ent with its obligations under Annex II or Article  6.8. 
In finding that HHI had not acted to the best of its ability, USDOC noted, "{i}n addition to the 
"selective reporting" issues identified above, these three issues demonstrate that {HHI} has 
engaged in  a pattern of behavior that leaves {USDOC} with a response that, taken as whole, is 
unreliabl e". Moreover, because HHI's information did not meet the criteria of paragraph 3 of 
Annex  II, HHI is not afforded the protections of paragraph 5 of Annex II. Final ly, USDOC's selection 
of the petition rate as a reasonable replacement for the missing necessary information, was in 
accordance with paragraph 7 of Annex II. Korea's claim to the contrary is without merit.  
3. Fourth Administrative Review on LPTs  
18. The r ecord shows, USDOC acted consistent with Article 6.8 and Annex II of the Anti -
Dumping  Agreement in applying facts available to HHI and Hyosung. Korea's arguments to the 
contrary are unsupported by the evidence and fail to demonstrate an inconsistency with Article 6.8 
and Annex II of the Anti -Dumping Agreement.  
19. With respect to HHI, USDOC resorted to facts available because HHI had withheld requested 
information and otherwise impeded the review to provide USDOC with the prices and costs of 
"accessories", provided inconsistent reporting of an identical component in different sales as foreign 
like and non -foreign like product, calling into question the reliability of its reporting of home market 
sales, and failed to report an affiliated sales agent. USDOC no ted that collectively, these issues 
demonstrate how HHI impeded the review. Moreover, by failing to provide this information, 
"collectively, these issues demonstrate how Hyundai has impeded this review" .  WT/DS539/R/Add.1  
 
- 44 - 
 
  20. With respect to Hyosung, USDOC resorted to fact s available because Hyosung had withheld 
requested information and significantly impeded the review by failing to report service -related 
revenues, failing to explain an invoice covering multiple sales of subject merchandise over multiple 
administrative per iods of review, and failing to report all relevant price adjustments and discounts. 
Taken together, with these failures the record lacked necessary information and called into question 
the entirety of Hyosung's reporting. Further, USDOC determined " the rec ord is incomplete and the 
lack of explanation regarding all three issues renders Hyosung's reporting unreliable" , and that 
Hyosung, therefore, significantly impeded the proceeding. In sum, the record supports Commerce's 
resorting to facts available with re spect to HHI and Hyosung.  
21. Despite the many flaws USDOC identified in HHI's and Hyosung's information, Korea asserts 
that USDOC's application of facts available was inconsistent with Article 6.8 and paragraphs 3 and  5 
of Annex II because USDOC improper ly rejected all of HHI's and Hyosung's reported information. 
Korea's assertions are unsupported by the record. USDOC determined that neither HHI nor Hyosung 
acted to the best of its ability because of each company's failure to provide, in a timely manner, the 
information necessary for USDOC to calculate a weighted -average dumping margin for exports of 
subject merchandise. As USDOC determined that HHI and Hyosung each failed to act to the best of 
its ability, USDOC's rejection of HHI's and Hyosung's reported  information was not inconsistent with 
its obligations under Annex II or Article 6.8.   
22. Similarly, the record does not support Korea's assertions that USDOC did not select the "best" 
information to replace HHI's and Hyosung's missing information, did n ot provide adequate reasoning 
and explanation for its selection of the petition rate as the replacement rate, did not sufficiently 
corroborate that rate, did not use special circumspection in selecting the rate, and finally, that its 
use of the rate was pu nitive. That the outcome is less favorable than Korea would have liked does 
not mean USDOC's application of facts available inconsistent with Article 6.8.  
D. Korea's Dependent Claims under Articles 1, 9.3 and 18.1  
23. Korea's allegations that the United St ates is in breach of Articles 1, 9.3, and 18.1 of the 
Anti-Dumping Agreement are entirely consequential —that is, dependent on its substantive claims 
under Article 6.8 and Annex II of the Anti -Dumping Agreement. At the end of its arguments with 
respect to e ach anti -dumping investigation, Korea argues that, if the Panel accepts its separate 
substantive claim, this breach "automatically" results in the breach of Articles 1, 9.3, and 18.1. 
Korea offers no argument or evidence to support any independent breach o f those provisions.  
24. If the Panel rejects Korea's substantive claims, then by Korea's own consequential logic and 
the absence of any argumentation or evidence, there would be no basis to find a breach of Articles  1, 
9.3, or 18.1 of the Anti -Dumping Agre ement. On the other hand, if the Panel agreed with Korea's 
substantive allegations, there would be no basis to decide Korea's consequential claims under 
Articles 1, 9.3, and 18.1 of the Anti -Dumping Agreement.  
III. KOREA HAS FAILED TO ESTABLISH THAT USDOC 'S APPLICATION OF FACTS 
AVAILABLE WAS INCONSISTENT WITH ARTICLE 12.7 OF SCM AGREEMENT  
A. Cold-Rolled Steel and Hot -Rolled Steel  
25. In the CRS and HRS investigations, USDOC applied facts available to POSCO for: (1) its failure 
to report certain cross -owned  input suppliers; (2) the discovery at verification of facilities located in 
a free economic zone (FEZ); (3) and DWI's failure to report certain loans. The missing necessary 
information was discovered at the CRS verification. Following the discovery of the  missing 
information in the CRS investigation, POSCO attempted to submit the information in the 
HRS investigation, but USDOC properly rejected the information as untimely and unsolicited.  
26. Korea alleges that USDOC acted inconsistently with Article 12.7 of the SCM Agreement in 
resorting to facts available with respect to POSCO's failure to provide necessary information. Korea's 
claims are completely unsupported by the records in the investiga tions, and are thus without merit. 
With respect to the cross -owned input suppliers, Korea argues that it was inappropriate to apply 
adverse facts, given the negligible amounts that it claims the input suppliers provided. However, 
nothing on the record indi cates that the amounts were in fact negligible. POSCO also claims, that 
the inputs were not "primarily dedicated" to the production of cold rolled steel. However, as USDOC WT/DS539/R/Add.1  
 
- 45 - 
 
  notes, whether an input product is primarily dedicated to the production of a downst ream product 
is a decision that can only be made by USDOC. Because POSCO refused to provide the information 
when requested, the amounts provided by the affiliated companies were never reported and USDOC 
never had the opportunity to verify the data or decid e whether the input product was primarily 
dedicated to CRS. Similarly, Commerce never had the opportunity to verify the information regarding 
POSCO's FEZ and DWI's additional loans because POSCO failed to provide the information when 
requested.  
27. Additio nally, USDOC's application of facts available was consistent with Article 12.7. Korea's 
arguments to the contrary are unsupported by the records in the investigation, as well as by the 
text of the SCM Agreement. Regarding Korea's claim that USDOC's selecti on of facts available was 
with a view to obtaining a result adverse to the interests of POSCO, rather than making an accurate 
determination, Korea points to nothing on the record to demonstrate that USDOC's determination is 
not accurate. Moreover, Article 12.7 of the SCM Agreement, properly interpreted, "acknowledges 
that non -cooperation could lead to an outcome that is less favourable for the non -cooperating party" .  
28. Finally, with respect to Korea's claim that in the HRS investigation USDOC failed to use the 
relevant "verifiable" information on the record, as discussed above, the information submitted prior 
to the HRS verification, but months after the deadline for new  factual information, was properly 
found to be unsolicited and untimely. Accordingly, the information was not, as Korea postulated, 
verifiable information on the record.  
B. Korea's Dependent Claims Under Articles 10, 19.4 and 32.1  
29. Korea's allegations t hat the United States is in breach of Articles 10, 19.4, and 32.1 of the 
SCM Agreement are entirely consequential —that is, dependent on its substantive claims under 
Article 12.7 of the SCM Agreement. At the end of its arguments with respect to each counter vailing 
duty investigation, Korea argues that, if the Panel accepts its separate substantive claim, this breach 
"automatically" results in the breach of Articles 10, 19.4, and 32.1.  Korea offers no argument or 
evidence to support any independent breach of those provisions.  
30. If the Panel rejects Korea's substantive claims, then by Korea's own consequential logic and 
the absence of any argumentation or evidence, there would be no basis to find a breach of 
Articles  10, 19.4, and 32.1 of the SCM Agreement. T herefore, if the Panel rejects Korea's claim under 
Article 12.7 of the SCM Agreement, Korea's consequential claims under Articles 10, 19.4, and 32.1 
necessarily fail. On the other hand, if the Panel agreed with Korea's substantive allegations, there 
would be no basis to decide Korea's consequential claims under Articles 10, 19.4, and 32.1 of the 
SCM Agreement. Therefore, if the Panel were to find a breach of Article 12.7 of the SCM Agreement, 
there is no basis to decide Korea's claims under Articles 10, 19. 4, and 32.1.  
IV. KOREA'S PURPORTED "AS SUCH" CHALLENGE TO AN ALLEGED UNWRITTEN 
MEASURE  
A. Legal Framework: "As Such" Claims against Unwritten Measures  
31. To succeed on an "as such" claim, Korea must show that the relevant measure"  will necessarily 
be inco nsistent with {the United States'} WTO obligations" . Moreover, a challenge to an unwritten 
measure must meet a particularly high threshold, as the existence of an unwritten measure cannot 
be lightly assumed. Furthermore, "{d}epending on the specific measur e challenged and how it is 
described or characterized by a complainant, however, other elements may need to be proven" .  
32. Korea also has raised the possibility of an unwritten measure in the form of so -called "ongoing 
conduct" , but only in the alternati ve. The United States would note that it has serious concerns about 
the rationale articulated by the Appellate Body in US – Continued Zeroing  for finding an entirely new 
type of "measure" to be subject to WTO dispute settlement. In any event, Korea identif ies no 
elements of proving the existence of ongoing conduct that differ from those necessary to prove the 
existence of a rule or norm, rendering it moot.  WT/DS539/R/Add.1  
 
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  B. Korea Fails to Establish Any "As Such" Breach of Article 6.8 and Annex II of the 
Anti-Dumping Agree ment or Article 12.7 of the SCM Agreement  
33. As Korea acknowledges, a Member attempting to challenge an unwritten measure "as such" 
must first establish the existence of the alleged unwritten measure, which requires showing (1) the 
precise content of the alleged rule or norm; (2) that this alleged measure is attributable to the 
responding Member; and (3) that this alleged measure has general and prospective application. 
Moreover, if a complaining Member can establish the existence of an unwritten measure, to 
substantiate a breach "as such" , the Member must demonstrate that the measure " —not only in a 
particular instance that has occurred, but in future situations as well —will necessarily  be 
inconsistent with {the responding} Member's WTO obligations" . As discussed in the U.S. preliminary 
ruling request and first written submission, Korea fails to provide a coherent argument regarding an 
as such claim against an alleged unwritten measure.  
34. Moreover, Korea argues that the findings in the US – Antidumping M ethodologies 
Appellate  Body report confirm the precise content of the alleged unwritten measure here. This is 
absurd. The precise content of the unwritten measure in US – Anti-dumping Methodologies was 
related to NME -wide entities and the producers/exporters included in it. This  measure has no 
relevance to this dispute, as USDOC has never treated Korea as a non -market economy. Therefore, 
there is no reasoning that would suggest the precise content of the measure in that dispute somehow 
proves different precise content supposedly at issue in this dispute. Thus, Korea's discussion of this 
report offers no support to its "precise content" argument.  
35. The analysis of attribution to the United States highlights the procedural unfairness of forcing 
the United States to mount a defense  of an undefined measure. It is nearly impossible to rebut a 
claim without knowing what the unwritten measure might be.  
36. Korea's argument on general and prospective application underscores again the utter 
incoherence that stems from Korea's failure to c hallenge an unwritten measure with consistent 
precise content. In attempting to establish that the alleged unwritten measure has general  
application, Korea argues that "{n}othing in the U.S. statute limits the application of AFA to certain 
producers only" . But Korea is not challenging the U.S. statute! This argument is completely silent 
on whether some unwritten measure has general application.  
37. Korea confuses the issue further by arguing next that 306 cases involving the use of adverse 
inferences when r esorting to facts available cover a broad range of products and producers. This 
argument, at best, is relevant to whether the use of adverse inferences when resorting to facts 
available has general application. If Korea is challenging the use of adverse in ferences when 
resorting to facts available generally ( i.e., without more) —something that is clearly not in its panel 
request —it would need to be consistent throughout the analysis of various other elements required 
for sustaining an as such claim. Korea wo uld need to demonstrate, inter alia , that the use of adverse 
inferences when resorting to facts available necessarily breaches Article 6.8 and Annex II of the 
AD Agreement and Article 12.7 of the SCM Agreement.  
38. Conversely, if Korea intends to show that  a more narrow rule or norm or ongoing conduct 
necessarily breaches these conditions, it would first need to show that this more narrow unwritten 
measure has general application. Korea utterly fails to attempt to substantiate its claim with any 
consistency  in terms of the precise content of the alleged unwritten measure. Its argument regarding 
the supposed general application of the unwritten measure represents a part of this failure.  
39. Korea's argument regarding prospective  application suffers from the same flaws of 
addressing a written statute rather than the supposed unwritten measure and vacillating between 
different formulations of the supposed measure that do not match the panel request. The 
United  States reiterates that Korea's submission simply fa ils to present a coherent as such claim and 
deprives the United States of a fair opportunity to provide a clear legal rebuttal. Finally, Korea is 
obviously incorrect in stating that the measure at issue in US – Antidumping Methodologies and the 
one Korea p urportedly challenges here share the "identical content"  
40. Korea argues that "{i}n the alternative, should the Panel consider that the use of AFA does 
not meet the criteria for being a rule or norm of general and prospective application, Korea considers  
that it in any case constitutes a form of 'ongoing conduct'" . Korea argues that the elements for WT/DS539/R/Add.1  
 
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  establishing the existence of an unwritten measure in the form of ongoing conduct overlap 
completely with the elements for establishing the existence of an un written measure in the form of 
a rule or norm with general and prospective application. If the inquiry does not include even a single 
condition that is not already covered by the rule or norm inquiry, it is of no utility and is, therefore, 
moot. Moreover, Korea errs in asserting that the "reasoning" from other cases involving different 
measures applies in this case.  
C. Korea's Argument that an Unwritten Measure Breaches Article 6.8 and Annex II of 
the Anti -Dumping Agreement and Article 12.7 of the SCM Agree ment Suffers from 
Several Additional Flaws  
41. Korea argues that statistics confirm the existence of some sort of unwritten measure. The 
statistics Korea discusses, however, are wholly incapable of supporting Korea's conclusion. 
Furthermore, by focusing on  a few specific factual cases and characterizing what occurs 
"sometimes" , Korea effectively argues for a finding of WTO inconsistency "as applied" , despite that 
it is attempting to support its as such claim.  
42. Korea's approach is incapable as a logical matter of supporting the conclusion it draws 
regarding the existence of some sort of unwritten measure. Korea started with cases in which 
adverse inferences allegedly were applied. The fact that —according to Korea —all but 13 cases 
included some language re garding failure to cooperate simply shows the frequency of 
non-cooperation findings in those 319 cases. However, it is incapable of establishing the frequency 
with which USDOC applies adverse inferences when it finds non -cooperation. At minimum, one would 
need to start with the universe of instances in which USDOC found non -cooperation, and then 
measure how often within the context of those instances USDOC applied adverse inferences in 
resorting to facts available. (Moreover, the fact that —according to Kore a's own data —over a dozen 
of the cases did not cite a failure to cooperate refutes Korea's argument) . 
43. Korea next filters out cases until 90 remain, and then asserts that, in all cases USDOC applied 
AFA in a mechanistic manner solely based on the finding that party failed to cooperate to the best 
of its ability and without engaging in the required comparative process of reasoning and evaluation 
and an assessment of the available facts on the record to identify the facts that lead to an accurate 
determination. Korea cites to no evidence to support its assertion and provides no explanation of 
how it reached this conclusion. Korea provides no further analysis of these 90 cases or the available 
facts on the 90 separate records. Korea's conclusory statem ent has no probative value regarding 
any question that might be relevant to a panel's analysis.  
44. Korea does, however, make multiple assertions that misunderstand the function of an as such 
challenge. Korea's statement that it "seeks to focus on the most  egregious situation where the 
{alleged unwritten measure} is in any case not consistent with the relevant WTO obligations of the 
United States" , implies that there are less egregious situations in which the alleged unwritten 
measure (whatever it is) is consistent with the United States' WTO obligations. Korea implies that 
perhaps among these are "situations of a complete lack of response or a complete failure to 
participate" . But this is the hallmark of a measure that is not WTO inconsistent "as such" . Rather, 
Korea is describing a measure that arguably is WTO inconsistent "as applied" in "the most egregious 
situation" . 
45. Elsewhere, Korea appears to recognize that the use of adverse inferences in cases of fraud or 
total lack of cooperation would be justif ied. But, again, this is just another way of arguing that the 
use of facts available is justified in some situations, and not "as applied" in others. This argument 
effectively concedes that there is no measure that could be an "as such" breach.  
46. Korea provides what it refers to as a "substantive analysis" . Korea argues on the basis of a 
table created by Korea that purports to summarize certain factors related to 12 of the 
90 determinations Korea previously discussed. Identifying 12 determinations, out o f hundreds that 
Korea itself cites, simply cannot support the existence of some sort of unwritten measure of general 
and prospective application.  
47. Korea then puts forward four arguments it derives from this table. First, according to Korea, 
USDOC in th ose 12 determinations resorted to the use of adverse inferences without considering the 
specific facts that led to the finding of non -cooperation. Korea criticizes USDOC for failing to WT/DS539/R/Add.1  
 
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  distinguish between, for example, "total lack of cooperation" and where  requested information was 
not provided for reasons USDOC considered invalid. However, Korea never even attempts to argue 
that the Anti -Dumping Agreement or the SCM Agreement requires investigating authorities to make 
such a distinction. Moreover, none of the many formulations of the alleged unwritten measure have 
described a prohibition on USDOC considering the facts surrounding the finding of non -cooperation.  
48. Second, Korea argues that USDOC's approach to facts available and adverse inferences serves 
a "punitive function" . Korea offers no evidence of this. U.S. courts have stated unambiguously that, 
under U.S. law, application of adverse inferences in resorting to facts available cannot be punitive . 
49. Third, Korea argues that the facts selected invari ably are adverse to the interests of the non -
cooperating producer. It is unsurprising that, when reviewing adverse inference cases, USDOC 
invariably applies adverse inferences.  
50. Fourth, Korea alleges that the sampled determinations show that at no poin t in these 
determinations does USDOC engage in a comparative evaluation and assessment or seek to 
corroborate the information with a view to arriving at an accurate determination. This again, 
however, is a conclusory characterization from Korea with nothin g more. It cites no evidence. It 
discusses no details of any of the determinations. Korea does allege that, "{s}ometimes, the USDOC 
does not even refer to any corroboration, in line with Section 776 of the Tariff Act of 1930, as 
amended, which does not req uire corroboration" . To state the obvious, "sometimes" is insufficient 
for an as such claim. An as such claim requires demonstrating that a measure necessarily  breaches 
the covered the agreements.  
51. Korea returns to the three alleged methodologies or "p ractices" it now labels "the 'Total 
AFA – Highest Dumping Margin' practice, the 'Expenses AFA – Highest / Lowest Expenses' practice, 
and the 'Subsidy Program – Highest Rates AFA' practice" . However, Korea offers nothing more than 
conclusory statements abou t these alleged practices. The differences between these three alleged 
practices make clear that Korea cannot possibly be challenging a single measure, and none  of these 
three alleged practices was included in Korea's panel request.  
EXECUTIVE  SUMMARY  OF U.S.  OPENING  STATEMENT  AT THE  FIRST  SUBSTANTIVE  MEETING  
OF THE  PANEL  
52. The United States addressed one additional argument by Korea in the U.S. Opening Statement 
at the First Substantive Meeting. A summary of the U.S. argument is below. The Ex ecutive Summary 
of U.S. First Written Submission covers the remainder of the U.S. arguments.  
I. KOREA'S ARTICLE 9.4 CLAIM  
53. Korea fails to make out a prima facie case with respect to its claim that the LPT fourth period 
of review ("POR4") all others rate  breaches Article 9.4 of the Anti -Dumping Agreement. Article 9.4 
contains a single directive —that the all -others rate, in certain circumstances, shall not exceed a cap 
set by a methodology contained in that provision. Korea has not even alleged what the ca p was in 
that review, which is a pre -requisite to establishing that the all others rate exceeded the cap. 
Accordingly, its claim fails.  
54. Article 9.4 requires that facts available rates and zero or de minimis  rates be excluded from 
the calculation of the  cap. In the LPT POR4 proceeding, there would be no rates left once rates based 
on facts available are disregarded. Korea attempts to rely on what the Appellate Body has referred 
to as a lacuna in Article 9.4.  
55. As an initial matter, the United States ha s serious concerns about the Appellate Body 
statements in this regard. A perceived lacuna —or gap —in an agreement means that the Members 
have not, in fact, agreed on any disciplines in the relevant area. "Recommendations and rulings of 
the DSB cannot add to  or diminish the rights and obligations provided in the covered agreements" . 
To the extent that a "gap" exists, only the Members are permitted to address it. In the case of 
Article  9.4, where no cap can be calculated, by its own terms agreed to by the Memb ers, the 
provision is inoperative. The Members have not agreed on any alternative cap.  WT/DS539/R/Add.1  
 
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  56. In the US – Zeroing  report relied upon by Korea, the Appellate Body ultimately found that, as 
the participants failed to suggest an alternative methodology to calcul ate the maximum allowable 
all others rate ( i.e., cap), it did not need to resolve the issue in that appeal. Thus, its problematic 
reasoning is best understood as obiter dictum . In any event, as in that case, the parties here also 
have not proposed any alte rnative methodology for calculating the cap in Article 9.4 (likely because 
there is not one based in the text of the Agreement). Therefore, Korea has failed to make out a 
prima facie case, and the Panel need not resolve the issue to dispose of Korea's clai m.  
EXECUTIVE  SUMMARY  OF U.S.  SECOND  WRITTEN  SUBMISSION  
I. INTRODUCTION  
57. The records of the investigations and administrative reviews that are the subject of this dispute 
fully support USDOC's findings that the Korean respondents failed to provide reque sted information 
and USDOC's resort to facts available. As demonstrated in previous submissions, for each of the 
eight determinations, Korea fails to establish that in applying facts available, Commerce acted 
inconsistently with Article 6.8 and Annex II of  the Antidumping Agreement or with Article 12.7 of 
SCM Agreement. Korea's arguments to the contrary are without merit.  
58. First, Korea's arguments are based on mischaracterizations of the facts or omissions of 
evidence. Through its mischaracterizations o f the facts, Korea attempts to expand the record that 
was before Commerce at the time of its determination and to blame Commerce for inconsistencies 
in the record and the failures of Korean respondents.   
59. Second, Korea's arguments attempt to substitute  the judgment of Korean respondents for 
that of USDOC, despite that the latter is the investigating authority. Korea does not dispute 
Commerce's findings that Korean respondents failed to provide the requested missing information. 
Rather, Korea takes the u ntenable position that Korean respondents are permitted to withhold 
requested information based on what they themselves determine to be necessary or relevant. In 
substituting their own views, Korean respondents deprived USDOC of an opportunity to examine 
requested information, and ultimately deprived Commerce of an opportunity to complete requisite 
calculations. Korea erroneously attempts to turn their failure to cooperate into WTO breaches. 
However, such attempts find no basis in the Anti -Dumping Agreement  or SCM Agreement.  
60. Moreover, Korea fails to establish that the alleged unwritten measure in its panel request even 
exists. Indeed, much of Korea's argumentation in support of its as such challenge fails to address 
the alleged unwritten measure in its panel request —that is, the lone alleged unwritten measure that 
actually is within the Panel's terms of reference. Furthermore, numerous Commerce determinations 
demonstrate that Korea is wrong that, whenever USDOC finds a failure to cooperate, it adopts 
adverse inferences. In addition, numerous determinations further demonstrate that Korea is wrong 
that, whenever USDOC finds a failure to cooperate, it ceases to engage in any reasoning regarding 
the information likely to lead to an accurate result and instead  uses the adverse inference as the 
"sole basis" for selecting facts on which to rely. The incoherence of Korea's as such arguments also 
result in a failure to establish a prima facie case that the alleged unwritten measure in its panel 
request has general and prospective application. Furthermore, Korea's attempts to demonstrate an 
as such breach of Article 6.8 and Annex II of the Anti -Dumping Agreement and Article 12.7 of the 
SCM Agreement —which seemingly are conflated with Korea's arguments about the alleg ed existence 
of an unwritten measure —are equally meritless.  
II. KOREA HAS FAILED TO ESTABLISH THAT USDOC'S APPLICATION OF FACTS 
AVAILABLE WAS INCONSISTENT WITH ARTICLE 6.8 AND PARAGRAPHS 1, 3, 5, 6 
AND 7 OF ANNEX II OF THE ANTI -DUMPING AGREEMENT  
A. Corrosion Resistant Steel Products  
61. Korea has failed to establish that USDOC acted inconsistently with Article 6.8 and Annex II of 
the Anti -Dumping Agreement in applying facts available in the investigation on corrosion resistant 
steel products. Korea' s additional arguments to the contrary ignore USDOC's findings, 
mischaracterize the record, or based on the untenable proposition that authorities are obligated to 
adopt methodologies favored by foreign producers or other interested parties. Specifically, Korea's 
response to panel questions focuses entirely on Hyundai Steel's purported efforts and difficulty in WT/DS539/R/Add.1  
 
- 50 - 
 
  providing the requested information and faults Commerce for not adopting a methodology proposed 
by Hyundai Steel for reporting further manufactured sales. Thus, Korea's response does not advance 
Korea's position that necessary information was not missing. Additionally, contrary to the arguments 
in Korea's responses to panel questions, consistent with paragraphs 1 and 6 of Annex II of the 
Anti-Dumping Agreement, USDOC provided Hyundai Steel with guidance, a reasonable time to 
provide specified information, and meaningful opportunity to provide further explanation. Korea's 
arguments to the contrary mischaracterize the record and are an attempt to blame U SDOC for 
Hyundai Steel's failures.   
62. Moreover, the record shows that USDOC took into account Hyundai Steel's alleged reporting 
difficulties. However, Hyundai Steel's credibility with respect to reporting difficulties was significantly 
undermined by rep eated instances in which Hyundai Steel was able to subsequently respond to 
questions it had previously indicated were too complicated or to which it otherwise could not respond. 
Thus, USDOC reasonably concluded, "{t}he record demonstrates that Hyundai Stee l has: submitted 
a series of inaccurate value added calculations with respect to the sales at issue; made claims of 
difficulty in gathering data which were inaccurate; and submitted Section E responses that were 
unusable, unreliable, and unverifiabl e".  
63. In its responses to Panel questions, Korea challenges Commerce's use of petition rates as 
facts available to replace the missing information. However, Korea's arguments are not grounded in 
either the relevant WTO obligations, or in the record of the proc eeding. Contrary to Korea's assertion 
in its responses to Panel questions, USDOC did provide an "explanation in terms of the relevance or 
representativeness" , of the petition rates.  
B. Cold-Rolled Steel and Hot -Rolled Steel  
64. Korea failed to establish t hat USDOC acted inconsistently with Article 6.8 and Annex II of the 
Anti-Dumping Agreement in applying facts available with respect to Hyundai Steel's failure to provide 
necessary information regarding affiliated service providers and to accurately report certain product 
specifications and the relevant CONNUMs.  
65. The record shows that USDOC reasonably found that information submitted by Hyundai Steel 
with respect to affiliated party transactions was insufficient to show that the transactions were at 
arm's  length. Korea has failed to demonstrate that USDOC's resort to facts available with respect to 
Hyundai Steel's affiliated service providers was inconsistent with Article 6.8 and Annex II of the 
Anti-Dumping Agreement. Moreover, USDOC properly determined i n both the CRS and HRS 
investigations that Hyundai Steel failed to cooperate by not acting to the best of its ability in its 
responses to USDOC's requests for necessary information regarding its affiliated service providers.  
66. Regarding Hyundai Steel's misreported CONNUM information, in its response to panel 
questions, Korea attempts to characterize the misreported sales information as "not necessary" and 
"not required for USDOC to complete its determination" because they involved a small volume of 
sales. This is yet another instance of Korea – without any legal basis in the Anti -Dumping Agreement 
– arguing that the USDOC was somehow required to accept the self -evaluation of an interested party 
as to what information was "necessary" to complete a determin ation.  
67. Given the inconsistencies with respect to Hyundai Steel's reporting of certain CONNUMs, Korea 
presents no argument or evidence as to why USDOC's determination that the relevant CONNUM 
information could not be verified could not have been made b y an unbiased and objective authority. 
Finally, Korea's characterization of USDOC's replacement information as having been selected "for 
the sole purpose of reaching an adverse result" is unsupported by the record. As USDOC explained, 
because Hyundai Steel  did not provide sufficient or plausible explanations at verification as to why 
it had failed to accurately report information, USDOC found that Hyundai Steel had failed to 
cooperate to the best of its ability and used an adverse inference when selecting t he reasonable 
replacement information. USDOC ultimately replaced the missing necessary information with values 
reported by Hyundai Steel itself for the relevant CONNUM product specifications. That the outcome 
is less favorable than Korea would have liked d oes not mean the application of facts available was 
punitive or otherwise inconsistent with Article 6.8 and Annex II.  WT/DS539/R/Add.1  
 
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  C. Large Power Transformers  
68. Korea has failed to establish that USDOC acted inconsistently with the Article 6.8 and Annex  II 
of the Anti -Dumping Agreement in applying facts available in the administrative reviews regarding 
large power transformers. As the United States has previously demonstrated, Korea's arguments to 
the contrary ignore the record evidence and are an attempt  to blame USDOC for the failures of 
Korean respondents.  
69. Korea fails to establish that USDOC's treatment of Hyundai's service -related revenue in POR2 
and POR3 breaches the Anti -Dumping Agreement. Notably, Korea makes no argument that USDOC's 
requiremen t to cap service -related revenue is inconsistent with any WTO obligation. Nor does Korea 
dispute that capping revenue by the amount of expenses is necessary to obtain an accurate, 
undistorted dumping margin. Moreover, Korea fails to acknowledge that USDOC capped the other 
respondent's (Hyosung) revenue in the same manner.  
70. Korea continues to insist that USDOC is to blame for Hyundai's refusal to provide the requested 
information pertaining to the "accessories" that Hyundai sold to its customers. This po sition is 
baseless. As we demonstrated in our first written submission and in our responses to Panel 
questions, once Commerce made the request for information, Hyundai either had to report the 
requested information pertaining to accessories, or accept that  its non -cooperation would result in 
the application of facts available.  
71. Korea challenges the rates USDOC applied in POR3 and POR4, claiming both determinations 
were inconsistent with the requirements of Article 6.8 and paragraph 7 of Annex II of the 
Anti-Dumping Agreement. USDOC examined the information obtained from a cooperating in POR3 
(i.e., from Hyosung), which comports with the directive in paragraph 7 to check the information with 
"information obtained from other interested parties during the in vestigation" . In this case, that 
meant the same review —i.e., POR3.  
72. With respect to POR4, Korea claims the USDOC incorrectly justified its reliance on the margin 
from the petition by the fact that it was relied upon in POR3. Once again, Korea's argumen t is 
meritless. USDOC encountered repeated failures to cooperate in successive reviews. The petition 
rate used in the previous review remains valid —and perhaps predictable —for purposes of facts 
available in the ensuing review. If information indicates the petition rate is no longer valid, USDOC 
is free to consider that information and reject the petition rate, where warranted, for use as facts 
available. However, Korea is unable to point to any information on the record of POR4 that was not 
considered and c alls into question the validity of the petition rate. Accordingly, again in this "as 
applied" challenge to USDOC's application of the rate from the petition, Korea has failed to 
demonstrate USDOC's determination was inconsistent with the requirements of Ar ticle 6.8 and 
Annex  II of the Anti -Dumping Agreement.  
73. Similarly, Korea fails to make out a prima facie case with respect to its claim that the all others 
rate used in POR4 breaches Article 9.4 of the Anti -Dumping Agreement. Article 9.4 contains a sing le 
directive —that the all -others rate, in certain circumstances, shall not exceed a cap set by a 
methodology contained in that provision. Korea has not even alleged what the cap was in that 
review, which is a pre -requisite to establishing that the all othe rs rate exceeded the cap. Accordingly, 
its claim fails.  
III. KOREA HAS FAILED TO ESTABLISH THAT USDOC'S APPLICATION OF FACTS 
AVAILABLE WAS INCONSISTENT WITH ARTICLE 12.7 OF THE SCM AGREEMENT  
A. Cold-Rolled Steel and Hot -Rolled Steel  
74. In its responses to  Panel questions Korea challenges USDOC's resort to facts available on the 
basis that POSCO followed USDOC's regulations and supposed "practice" to determine for itself that 
POSCO's affiliated input suppliers did not produce inputs "primarily dedicated" to  the production of 
the downstream product, and thus the information requested by USDOC regarding POSCO's affiliated 
input suppliers was not relevant to the investigation. However, Korea's assertion —that Commerce 
was required to accept POSCO's decision that  it could refuse to cooperate based on POSCO's own 
evaluation of what information Commerce required —is untenable.  WT/DS539/R/Add.1  
 
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  75. Korea also fails to establish that USDOC's reliance on facts available with respect to POSCO's 
facility located in a Free Economic Zone i s inconsistent with Article 12.7 of the SCM Agreement. With 
respect to the CRS investigation, USDOC was unable to confirm POSCO's statement "that it has no 
facilities located in an FEZ and, therefore, {that POSCO} did not receive benefits under this 
progra m", USDOC resorted to facts available. With respect to the HRS investigation, nothing in the 
SCM Agreement requires USDOC to accept information submitted well after the factual deadline. 
Despite the additional arguments Korea presents, Korea fails to estab lish that USDOC's resort to 
facts available with respect to the FEZ facility was inconsistent with Article 12.7 of the 
SCM Agreement.  
76. Korea also fails to establish that USDOC reliance on facts available concerning additional loans 
to POSCO's cross -owne d affiliate DWI was inconsistent with Article 12.7 of the SCM Agreement. 
Indeed, USDOC's determination that, due to "the magnitude of change in the reported lending under 
the specified program" , the additional loans submitted at verification did not consti tute a minor 
correction and instead constituted new factual information, evidences no bias or lack of objectivity. 
Thus, Korea has failed to show that USDOC's determination in this respect is inconsistent with 
Article  12.7. 
77. With respect to the HRS inve stigation, Korea asserts that, in the hot -rolled steel investigation, 
POSCO submitted requested information regarding (1) affiliated input suppliers, (2) the existence of 
an R&D facility located in an FEZ, and (3) additional loans to DWI within a reasonabl e period of time. 
The record shows otherwise, and USDOC's decision to reject POSCO's untimely data was consistent 
with Article 12.7 of SCM Agreement. Specifically, USDOC found that POSCO's information was 
untimely, an objective fact based on published dead lines according to published regulations. Korea's 
view—without regard to USDOC's need to run an orderly investigation that is fair to all parties —that 
USDOC was obligated to make a sui generis exception for POSCO is not supported by Article 12.7 
(or any ot her provision) of the SCM Agreement.  
IV. KOREA'S "AS SUCH" CLAIM AGAINST AN ALLEGED UNWRITTEN MEASURE  
A. Korea Fails To Establish the Existence of the Alleged Unwritten Measure  
1. Korea's Arguments Often Fail to Even Address the Alleged Unwritten Measure 
Described in its Panel Request  
78. In its preliminary ruling, the Panel explains that the unwritten measure challenged by Korea 
"as such" that is within the Panel's terms of reference is described in Section I.C of Korea's panel 
request. However, K orea's arguments bounce around wildly, addressing a multitude of "measures" 
that do not match the one in its panel request —the lone alleged measure within the Panel's terms 
of reference. The existence of a measure in US – Anti-dumping Methodologies offers no support for 
the existence the markedly different alleged measure in Korea's panel request. The same is true 
regarding US – Supercalendered Paper . 
79. Many of Korea's arguments, including in its responses to Panel questions, imply that the 
challenged mea sure consists of a resort to adverse inferences upon a finding of non -cooperation, 
and nothing more. However, Korea's panel request cannot be read as challenging the use of adverse 
inferences broadly, as it clearly describes elements beyond the mere drawin g of adverse inferences. 
Therefore, arguments that address a measure that consists only of resort to adverse inferences upon 
a finding of non -cooperation, and nothing more, are manifestly insufficient.  
80. Furthermore, Korea raises three alleged "methods" or "practices" regarding USDOC's selection 
of AFA in distinct and narrow factual circumstances that fail to address the existence of the alleged 
measure that is actually within the Panel's terms of reference, and therefore also are irrelevant to 
Korea's as  such claim.   
81. Korea's panel request gives no indication that the enactment of the TPEA provides any such 
cut-off for assessing its claim. Korea is not permitted to amend its claim in this respect during the 
pendency of proceeding. Moreover, various ele ments of the TPEA discussed by Korea do not apply 
to all cases, which would mean even a WTO inconsistency in a subset of cases would not warrant 
the as such finding Korea seeks. To be clear, the United States strongly maintains that no provision 
in the TPE A breaches the covered agreements.  WT/DS539/R/Add.1  
 
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  2. Korea Is Wrong that, Whenever USDOC Makes a Non -Cooperation Finding, It 
Resorts to Adverse Inferences  
82. One element of the alleged unwritten measure in Korea's panel request is that, whenever 
USDOC makes a finding t hat a producer or exporter has failed to cooperate by not acting to the best 
of its ability, it adopts adverse inferences. Because this is demonstrably false, Korea's attempt to 
prove the existence of the alleged unwritten measure fails.   
83. In rejecting  the proposal to mandate adverse inferences for all instances of non -cooperation, 
USDOC explained that USDOC "does not agree that the imposition of adverse inferences is 
mandatory" and emphasized the use of the term " may" in the governing statutory provisi on. In fact, 
in US – Carbon Steel , the Appellate Body examined the relevant statutory and regulatory provisions 
and found that they are not "as such" inconsistent with Article 12.7 of the SCM Agreement. The 
TPEA did not change the discretionary nature of t he statute.  
84. Furthermore, and perhaps most importantly, the record evidence in this dispute does not 
support that USDOC has adopted some sort of unwritten measure that requires the use of adverse 
inferences whenever a respondent fails to cooperate. To the contrary, numerous examples (both 
before and after the enactment of the TPEA) —such as Stainless Steel Bar from Italy , Olives from 
Spain , Aluminum Extrusions from China , Welded Line Pipe from Korea , Korea CRS CVD  and 
Korea  Hot-Rolled CVD , Non-Oriented Electrical Steel from Taiwan , and Softwood Lumber from 
Canada —prove that Korea simply is incorrect that whenever USDOC makes a finding that a producer 
or exporter has failed to cooperate by not acting to the best of its ability, it automatical ly adopts 
adverse inferences. Accordingly, its as such claim must be rejected.  
3. Korea is Wrong that, in Cases of Non -Cooperation, USDOC Ceases To Reason 
Regarding the Information Likely to Lead to an Accurate Result and Instead 
Uses the Adverse Inference  as the "Sole Basis" for Selecting Facts  
85. Additional elements of Korea's alleged unwritten measure are that Commerce "selects facts 
from the record that are adverse to the interests of this producer or exporter without establishing 
(i) that such inferen ces can reasonably be drawn in light of the degree of cooperation received, and 
(ii) that such facts are the "best information available" in the particular circumstances" . As with 
respect to the alleged resort to an adverse inference in all cases of non -cooperation, Korea has not 
and cannot establish the existence of these elements.  
86. Because the reasonableness of the inferences drawn in light of the degree of cooperation 
received, and the best information available in the particular circumstances, are bo th relative 
concepts that depend explicitly on the facts of each individual case, these elements are inherently 
incompatible with an as such claim. It is nonsensical to challenge a measure as such, based on a 
theory that it consists of treatment that is to o harsh in light of the specific facts of each individual 
case; what is too harsh in one case has no bearing on what is too harsh in another.  
87. Furthermore, upon finding non -cooperation, USDOC does not abandon all reasoning and 
pursuit of an accurate re sult in favor of selecting facts solely on the basis of an adverse inference. 
The numerous cases cited above, as well as Certain Cold -Rolled Steel Flat Products from the 
Russia n Federation , OCTG from Korea , Certain Uncoated Paper from China , Large Resident ial 
Washers from Korea , Certain Uncoated Paper from Indonesia , show, Korea is simply wrong that, 
whenever USDOC finds a failure to cooperate, it abandons all reasoning and pursuit of an accurate 
result in favor of selecting facts solely on the basis of an adverse inference. This provides yet another 
independent basis for finding that Korea's as such claim must fail.  
B. Korea Fails to Establish that the Alleged Unwritten Measure Has General and 
Prospective Applicatio n 
88. Korea alleges that the purported unw ritten measure "has general and prospective application" . 
Yet, Korea has offered no rebuttal in the wake of the United States' demonstration that Korea failed 
to establish this element of its claim. Thus, in its first written submission, Korea failed to ma ke out 
a prima facie case that the alleged unwritten measure that is within the Panel's terms of reference 
has general and prospective application. In its oral statement at the first substantive meeting, Korea 
included only a cursory, conclusory statement on this point, with no reasoning or evidence. WT/DS539/R/Add.1  
 
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  Accordingly, Korea has failed to establish the general and prospective nature of the alleged unwritten 
measure alleged in its panel request. This provides yet another independent reason why Korea's as 
such clai m must fail.  
C. Korea Fails to Establish a Breaches Article 6.8 and Annex II of the Anti -
Dumping  Agreement or Article 12.7 of the SCM Agreement  
89. As the United States pointed out in its first written submission, Korea's "statistical analysis" is 
logicall y incapable of demonstrating what Korea purports to show. Korea has offered no rebuttal to 
explain this fatal flaw. Therefore, Korea's statistical analysis unequivocally fails from its conception. 
Moreover, Korea's argument includes a second consequence al legedly associated with the trigger —
that USDOC "will select particularly adverse facts to replace the allegedly missing informatio n". 
"Particularly adverse" is inherently relative and fact -specific and, thus, not amenable to a statistical 
analysis. Korea f urther errs in its execution. Of the 319 cases listed in Exhibit KOR -216, Korea double 
counts 59 cases. Moreover, despite not discussing the facts or reasoning of the individual cases, 
Korea fails to place the vast majority of these cases on the record of this dispute. Thus, Korea's 
"statistical analysis" lacks an evidentiary basis.  
90. Korea's "substantive analysis" essentially continues Korea's effort to demonstrate the 
existence of an unwritten measure. Because the alleged unwritten measure is vaguely defined, Korea 
appears to have collapsed elements of the measure with the rationale for the alleged breach. This 
further underscores the incoherence of Korea's argumentation. Moreover, in both its first written 
submission and oral statement at the first meeting, the United States discussed a multitude of error's 
in Korea's "substantive analysis" . Korea has failed to even attempt a rebuttal. Furthermore, the 
United States previously demonstrated that, not only does the Anti -Dumping Agreement not proh ibit 
an investigating authority from considering the fact of a party's non -cooperation, it acknowledges 
the validity of such consideration, and Korea agrees.  
91. For these reasons, Korea's "substantive analysis" fails to establish a breach.  
EXECUTIVE  SUMM ARY  OF U.S.  OPENING  STATEMENT  AT THE  SECOND  SUBSTANTIVE  
MEETING  OF THE  PANEL  
92. The Executive Summary of U .S. Second Written Submission covers the arguments contained 
in the US Opening Statement at the Second Substantive Meeting of the Panel.  
____________ ___ 
 
 
 
 
 
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  56 
Annex  C-2 Integrated executive summary of the arguments of Canada  58 
Annex  C-3 Integrated executive summary of the arguments of the European Union  61 
Annex C -4 Integrated executive summary of the arguments of  Japan  64 
Annex C -5 Integrated executive summary of the arguments of  Mexico  69 
Annex C -6 Integrated executive summary of the arguments of  Norway  72 
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF BRAZIL  
I. Introduction  
 
1. Brazil provides the following executive summary of its participation during the panel 
proceedings in this dispute.  
 
II. The proper interpretation of Article 6.8 of the Antidumping Agreement and of 
Article  12.7 of the SCM Agreement and the recourse to "facts available " 
 
2. Brazil does not take a position as to whether the United States acted inconsistently with 
Articles 6.8 of the Antidumping Agreement and 12.7 of the SCM Agreement in the course of the 
eight investigations challenged by Korea, nor does Brazil take a position regarding Korea 's "as such " 
claims . 
 
3. However, Brazil notes that both Article 6.8 of the Antidumping Agreement and Article 12.7 of 
the SCM Agreement should be interpreted in a similar m anner, and that the goal of both Articles is 
to prevent an investigation from being hindered by providing the investigating authorities with a tool 
to fill in gaps in the information necessary for a determination . 
 
4. Nothing in the wording or context of t hese provisions suggests they should be used in a 
punitive manner. On the contrary, the Panel in EC – Countervailing Measures on DRAM Chips1 found 
that Article 12.7 of the SCM Agreement allows an authority to make determinations on the basis of 
the facts available, but not on the basis of mere assumptions or inferences. In fact, when the 
provisions of the Covered Agreements allow for the possibility to draw adverse inferences, these are 
foreseen for explicitly in the text, such as in paragraph 7 of Annex V  to the SCM Agreement.  
 
5. Brazil understands that a proper reading of Article 6.8 of the Antidumping Agreement and of 
Article 12.7 of the SCM Agreement leads to the conclusion that recourse to facts available is possible 
only with the purpose of identifyi ng replacements for the "necessary information " that is missing 
from the record. The facts available selected by the investigating authority, therefore, must 
reasonably replace the information that an interested party failed to provide .  
 
6. In addition, b oth Articles allow for the use of "the facts available "2 and not merely "facts 
available ". This reinforces the interpretation that all facts available to the authority would have to 
be considered when assessing how to fill in the gap of the missing information. Consequently, the 
investigating authority is not allowed to select only those facts that would lead to a biased 
determination of  dumping or subsidy, which would be tantamount to infusing a punitive nature into 
the provision.  
 
7. In response to a question by the Panel, Brazil also clarified that, in its view, Article 6.1 of the 
Antidumping Agreement and Article 12.1 of the SCM Agree ment impose on investigating authorities 
the duty to award ample opportunity for interested parties to reply to requests of information made 
by investigating authorities "even when the investigation is at an advanced stage ".  
 
8. In replying to another que stion by the Panel, Brazil also explained that it considers the resort 
to "facts available " to be permissible only in order to arrive at an accurate subsidization or injury 
determination. The task of analyzing and selecting among the facts available those that best replace 
the necessary missing information is, in Brazil 's view, a case -by-case endeavor. In this sense, the 
application of a predetermined rule of selection among the different available facts can lead to the 
selection of facts that may not be th ose best suited to reasonably replace the necessary missing 
information. Brazil, therefore, considers that application of such predetermined rule of selection 
would violate the investigating authority 's duty to conduct an evaluative assessment to determine , 
 
1 Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.245.  
2 Emphasis added.  WT/DS539/R/Add.1  
 
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  in practice and in each specific case, which facts are best suited as replacements for the necessary 
missing information.  
 
9. Finally, in response to a different question by the Panel, Brazil clarified that Korea 's list of 
319 investigations carried out by the USDOC includes countervailing duty investigations carried out 
between 2015 and 2016 of cold -rolled and hot -rolled steel from Brazil (Cases Nos. C -351-844 and 
C-351-846). Regarding those investigations, Brazil 's view is that they represent instances in which 
USDOC resorted to "adverse facts available " in an automatic and unjustified manner, therefore 
acting inconsistently with Article 12.7 of the SCM Agreement.  
 
 WT/DS539/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF CANADA  
I. CERTAIN CONSIDERATIONS DISCIPLINING THE USE OF FACTS AVAILABLE  
 
1. The use of facts available serves the dual function of providing investigating authorities with 
as broad an evidentiary basis as possible to ensure that an investiga tion is not hampered by a lack 
of information, while guaranteeing certain due process rights for interested parties . The use of facts 
available thus requires a careful balance between the rights and obligations of both investigating 
authorities and interes ted parties.  
 
2. Article  6.8 of the Anti -Dumping Agreement and Article  12.7 of the SCM  Agreement specify the 
finite circumstances under which an investigating authority may resort to "facts available "; that is, 
if an interested party: (1)  refuses access to  necessary information within a reasonable period; 
(2) fails to provide necessary information within a reasonable period; or (3)  significantly impedes 
the investigation . The use of facts available is further disciplined by the guidance provided in 
Annex  II of the Anti -Dumping Agreement.  
 
3. Canada highlights three considerations in the use of the facts available provisions.  
 
4. First, the use of "facts available " is limited to identifying replacements for "necessary 
information " missing from the record that  is needed  to arrive at an accurate determination . 
Information does not become necessary simply by virtue of being required or requested by an 
investigating authority . As such, investigating authorities have the onus of establishing that the 
information wa s necessary to complete its determination before resorting to facts available.  
 
5. Second, an investigating authority does not have unlimited discretion to reject information 
provided by interested parties, and to resort to facts available to replace such information . Rather, 
such an exercise of discretion is disciplined by the general obligation of the investigating authority 
under Article  6.6 of the Anti -Dumping Agreement (and similarly, Article  12.5 of the SCM  Agreement) 
to satisfy itself as to the accur acy of the information supplied by interested parties; and further 
disciplined by paragraphs  3 and  5 of Annex  II of the Anti -Dumping Agreement.  
 
6. Paragraph  3 of Annex  II specifies that verifiable information  that can be used in the 
investigation without undue difficulties, and which was supplied in a timely manner, should be taken 
into account by the investigating authority . If the conditions of paragraph  3 are met, investigating 
authorities are not entitled to reject the information.  
 
7. Verifiability ha s both a substantive and procedural component . Panels have considered 
information to be "verifiable " when the accuracy and reliability of the information can be assessed 
by an objective process of examination . Whether information is verifiable must be a co nclusion 
reached on a case -by-case assessment of the particular facts at issue, including not only the nature 
of the information submitted but  also the steps, if any, taken by the investigating authority to assess 
the accuracy and reliability of the information.  
 
8. Paragraph  5 of Annex  II further provides that where an interested party acted to the best of 
its abilities to provide the necessary information, the fact that the information "may not be ideal in 
all respects […] should not justify the aut horities from disregarding it ". Reading paragraphs  3 and  5 
of Annex  II in conjunction, past panels have found that information of a very high quality, although 
not perfect, must not be considered unverifiable solely because of its minor flaws, so long as t he 
submitter has acted to the best of its ability.  
 
9. Third, the use of facts available does not permit the selection of facts with the aim of punishing 
non-cooperation or a failure to provide the necessary information . The Appellate Body in US – Carbon 
Steel (India)  confirmed that while non -cooperation could lead to an outcome that is less favourable 
than had the party cooperated, it does not mitigate the obligation of the investigating authorities to 
engage in a process of reasoning and evaluation when s electing the alternative sources of facts.  WT/DS539/R/Add.1  
 
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  10. Nevertheless, Canada recalls that the Appellate Body did not preclude the use of adverse 
inferences in all situations . The permissibility of using such an inference will be derived from the 
procedural circumst ances in which the information is missing . An investigating authority using such 
an inference is still required to provide an explanation in its published report sufficient to allow a 
panel to assess whether the use of facts available resulted from a proce ss of reasoning and analysis, 
including an assessment of whether the use of  an inference comported with the relevant legal 
standard.  
 
II. CHALLENGES TO UNWRITTEN MEASURES  
 
11. The disciplines of the GATT and the WTO, as well as the dispute settlement system, are 
intended to protect the security and predictability of future trade . The aim of challenging an 
unwritten measure is generally to prevent future disputes by seeking an end to the use of the WTO -
inconsistent measure, and thus to avoid a multiplicity of litigation against future instances of its 
application . Members must be allowed to challenge both written and unwritten measures on a basis 
broader than "as applied ", or this objective would be frustrated.  
 
A. Establishing the Existence o f an Unwritten Measure  
 
12. Canada disagrees with the United States that circumstances for finding an unwritten measure 
that can be challenged, however characterized, to be narrow.  
 
13. The term "measure " in the Dispute Settlement Understanding (DSU) is br oad enough to 
encompass various types of acts and omissions attributable to a Member . This broad interpretation 
arises because the DSU permits a Member to bring a dispute whenever the Member considers that 
the benefits accruing to it under the covered agre ements are being impaired . A measure need not 
be written, nor be legally binding, to be subject to WTO dispute settlement.  
 
14. The Appellate Body and panels have used various analytical tools over the years to facilitate 
the understanding of certain unwritten measures, whether characterized as rules or norms of general 
and prospective application, ongoing conduct, concerted action or practice, or a measure of 
systematic application . While these analytical tools may assist this Panel in determi ning the existence 
of a measure, the Appellate Body held in US – Anti-Dumping Methodologies China  that measures 
need not be compartmentalized into these categories in order to be challenged in WTO dispute 
settlement . As the Appellate Body has explained in Argentina – Import Measures , these analytical 
tools do not constitute rigid legal standards or criteria.  
 
15. When challenging a measure, the Appellate Body in Argentina – Import Measures held that a 
complaining Member must establish the precise content of  the challenged measure, and attribute 
the measure to the responding Member . The additional elements that may need to be demonstrated 
will depend on the particular characteristics or nature of the measure being challenged.  
 
16. The precise content of a mea sure may be established by first describing the specific acts 
and/or omissions the measure consists of, followed by demonstrating that the measure exists based 
on available evidence . This may include evidence of the measure being repeatedly applied, the 
responding Member 's public descriptions of the measure, and, to the extent relevant, specific legal 
instruments in which the use of such measure is reflected or enabled.  
 
17. Where an alleged measure can be evidenced as being carried out by a government enti ty of 
the responding Member, establishing attribution is straightforward.  
 
18. Depending on the characteristics of the measure challenged, other elements in addition to 
precise content and attribution may need to be substantiated to prove its existence . Where a 
complaining Member has defined the measure at issue as a rule or norm of general and prospective 
application, that Member must demonstrate that the evidence establishes the general and 
prospective application of the measure . Where a Member has charac terized a measure as ongoing 
conduct, that Member must provide evidence of the measure 's repeated application and the 
likelihood that such conduct will continue.  
 
19. A measure 's future application could be clear from the constituent elements of the measur e, 
or may be demonstrated through factors such as: the existence of an underlying policy that is 
implemented by the measure; the systematic and repeated application of the measure; the design, WT/DS539/R/Add.1  
 
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  architecture, and structure of the measure; the extent to which  the measure provides administrative 
guidance for future conduct; or, the expectations it creates among economic operators that the 
measure will be applied in the future.  
 
20. An unwritten measure can be challenged as long as a complaining Member clearly d escribes 
and characterizes the precise content of the measure, presents evidence of its constituent elements, 
attributes it to the responding Member, and evidences other required elements of the measure 
depending on how it has been characterized by the com plaining Member.  
 
B. Legal Instruments as Evidence of Unwritten Measures  
 
21. Canada considers that to the extent that provisions of laws or regulations enacted by a 
responding Member may evidence constituent elements of an alleged measure, it is not alway s 
necessary —or appropriate —for a challenge to be brought against the legal instrument itself . An 
enabling law or regulation may not in and of itself be WTO -inconsistent, in that it still allows a 
responding Member to act in a manner consistent with its WTO  obligations . It may be in the 
application of a law or regulation that the measure leading to the infringement of a Member 's 
obligation arises.  
 
22. Where the challenge concerns an unwritten measure, the relevant enabling law or regulation 
may rightly be viewed as evidence of a measure . In some instances, the formulation of an underlying 
law or regulation may provide evidence of administrative guidance towards the use of a particular 
methodology or practice, which creates expectations among the public and among private actors 
towards its future application . The legal instrument may thus have "normative value ", in that it 
reflects, or perhaps legitimizes, a long -standing policy or practice.  
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE  ARGUMENTS  
OF THE EUROPEAN UNION  
1. The EU is aware that there is no rule of precedent under the WTO law. However, continuity 
and consistency in the jurisprudence serve to provide security a nd predictability to WTO Members 
and the multilateral trading system as a whole. Providing security and predictability is precisely the 
objective of the dispute settlement system of the WTO and it serves the promotion of international 
trade. Therefore, dep artures from the legal clarifications contained in previous reports (notably of 
the Appellate Body) should be avoided unless there are cogent reasons.  
 
2. Korea challenges, in the present case, the use of adverse facts available in six sets of 
proceedings  as inconsistent with the obligations of the United States under the relevant provisions 
of the ADA and the SCMA, notably Article 6.8 and Annex II of the ADA and in Article 12.7 of 
the SCMA. With regard to Korea as applied claims, the Panel will have to as sess the explanations 
provided by the USDOC as the basis for its facts available determinations. These explanations should 
be sufficient to allow the Panel to assess whether and to what extent the available facts employed 
by the USDOC were reasonable repla cements for the allegedly missing information, and also shed 
light on the comparative assessment the USDOC performed whenever different sets of information 
were available.  
 
3. With regard to these claims the EU has recalled a number of principles that have been clarified 
by the jurisprudence and help in understanding the legal standard for the use of facts available. As 
a first point, it should be recalled that the legal standard under Article 12.7 SCMA and under 
Article  6.8 and Annex II of the ADA is e ssentially the same. The second is that the idea underlying 
the disciplines concerning the use of facts available is that of striking a balance between the IA 's 
need to conduct the investigation in an orderly manner and the due process rights of the intere sted 
parties. Therefore, the Panel should look at the arguments of both parties through these lenses.  
 
4. With regard to the mentioned general principles, both the ADA and the SCMA indicate that 
an IA may resort to facts available if some information that  is necessary for the completion of the 
investigation is missing. In that scenario, an IA needs to use facts available otherwise it would not 
be capable of completing the investigation. Moreover, facts available can only be applied against an 
interested pa rty if the authorities had requested the relevant facts from this interested party, making 
it aware that, if it does not supply the information within a reasonable time, the investigating 
authority will be free to resort to those facts that are available. Sometimes an IA can assess the 
necessity of the missing information only once it has collected it. It must thus have the right to 
request information that might turn out not to be relevant from an ex -post perspective. However, 
the latitude of the investiga ting authority in determining what information is necessary is tempered 
by a clear burden on the authority to be prompt and precise in identifying the information it needs. 
The information request, must be made as soon as possible after the initiation of t he investigation, 
but late requests remain possible. In that case, due process requires the IA to give the interested 
party ample opportunity to present in writing all evidence that the latter considers relevant although 
it can be expected that when the in vestigation is at an advanced stage, the deadline for replying will 
be relatively short.  
 
5. Likewise, IAs can impose time -limits for the submission of the requested information as the  IA 
is responsible to close the investigation within tight deadlines. At  the same time, those time -limits 
are not necessarily absolute and immutable but can and must be extended upon cause shown by an 
interested party where it is practicable, i.e. if the interested parties submits the information within 
a reasonable period of time. However, s ince timeliness is essential for an orderly conduct of the 
investigation, a tardy submission of information can constitute an instance of non -cooperation. In 
this connection, in order to inform interested parties of the constraints faced by  the investigating 
authority, it is good practice to publish the schedule of each investigation, indicating clearly all the 
procedural steps that must take place until its conclusion.  
 
6. There is a clear preference for the use of data provided by the resp ondent, which is particularly 
clear from paragraphs 3 and 5 of Annex II of the ADA. However, the same provisions show that this WT/DS539/R/Add.1  
 
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  obligation is not absolute. On the one hand, the obligation to take into account non -ideal data 
submitted by a respondent applie s only in case of a fully cooperating respondent (acting to the best 
of its ability). On the other hand, even in case of a fully cooperating respondent, the data it submits 
must only be used insofar as it meets the criteria in paragraph 3 of Annex II, i.e.  it is verifiable, 
appropriately submitted and supplied in a timely fashion (i.e. within a reasonable period).  
 
7. In this vein, the EU considers important to raise the issue of use of partial datasets, notably 
when the interested party partially reports i nformation that should be in its possession. Flaws or 
gaps of part(s) of a dataset may taint other parts of it or make them unreliable or unusable, and in 
such cases, the other parts can be discarded as well. This has nothing to do with a "punitive " use of  
facts available. It is simply common sense. Where only part of overall sales data is reported, the 
omission on the other part(s) may, and will often, cast legitimate doubts on the data that has been 
selectively submitted, or simply make reconciliation imp ossible. In a situation where an interested 
party partially reports data that should normally be in its possessions, using that information may 
be overly difficult within the meaning or in paragraph 3 of Annex II. Moreover, it will be difficult to 
conclude  that the interested party acted to the best of its ability, as required by paragraph 5 of 
Annex II. Therefore in this scenario the data should be complete and accurate and (exception made 
only for minor clerical errors) any gaps or inconsistencies may be enough to authorise the 
investigating authority to consider that the interested party has not cooperated and that the use of 
facts available is justified in that case. By contrast, if the collection of the information requested 
requires a significant effor t on the part of the interested party, it is understandable that some of the 
data may be imprecise or missing.  
 
8. It is also established that IAs must use the most fitting or "most appropriate " information 
available in the case at hand, and therefore it m ust assess carefully all facts on the record in order 
to choose the most appropriate ones, and take into account all procedural circumstances in which 
specific information is missing. During the investigation the IA and the interested party must make 
a joint effort to cooperate in order to obtain the requested information. That explains why the 
procedural circumstances in which information is missing can be relevant to an investigating 
authority 's use of facts available. As clarified by the Appellate Body, there is nothing unreasonable 
or anomalous in drawing inference also from the procedural circumstances, including from the non -
cooperation of the interested party. The drawing of an inference, including from the refusal to provide 
information, is an ordina ry aspect of the legal reasoning. In the absence of any evidence gathering 
powers, the possibility of drawing certain inferences from the failure to cooperate plays a crucial role 
in inducing interested parties to provide the necessary information. This do es not mean that non -
cooperation provides a blank cheque for simply basing a determination on speculative assumptions 
or on the worst information available, or for punishing the un -cooperative party. Ultimately, the 
determination has to be based of the ava ilable facts and additionally the best available facts, and 
not on mere speculation. Hence, two extremes should be avoided: an IA should neither choose to 
apply facts that are manifestly and disproportionately adverse, nor should it be requested to 
specula te about the fact that the interested party would have submitted if it had cooperated. All that 
it is required is that the information is a reasonable replacement for the missing one.  
 
9. Korea also argues that the United States ' use of adverse facts avail able (AFA) is inconsistent 
"as such " with its WTO obligations. According to Korea, the United States ' use of AFA operates as a 
rule or norm of general and prospective application or, in the alternative, constitutes a form of 
"ongoing conduct " that can be challenged "as such " before the panel.  
 
10. A challenge to a WTO inconsistent measure "as such " contributes to a more efficient use of 
the dispute settlement system by obviating to the need to start individual proceedings each time the 
measure is applied in a specific case. Moreover, the AB has clarified that the discretionary nature of 
the measure is no barrier to a challenge "as such ". Still Korea bears the burden of introducing 
evidence as to the content of the measures it challenges. The EU finds that the content of the 
measure challenged by Korea is not different from the content of the statutory lang uage of 
Section  776 of the Tariff Act of 1930, as amended by the TPEA of 2015. Korea argues that on that 
basis there is a constant practice of the USDOC of resorting to adverse facts available in a manner 
that is inconsistent with the United States ' obliga tions.  
 
11. In order to prove that the USDOC invariably adheres to rules set out in Section 776, despite 
the discretionary language used in that statute, Korea may avail itself of individual decisions showing 
the consistent and systematic application of t he statutory provisions in individual proceedings, the WT/DS539/R/Add.1  
 
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  pronouncements of domestic courts on the meaning of such provisions, the opinions of legal experts 
or the writings of recognized scholars.  
 
12. However, whether a measure that allows an IA to resort t o facts available and to use adverse 
inferences whenever it finds that the exporter has not sufficiently cooperated may be 
WTO inconsistent will depend on whether or not it respects the principles recalled above concerning 
the discipline on the use of fact s available under the ADA and the SCMA. In this connection, the EU 
considers also that it would be extremely difficult, if not impossible, to define a predetermined rule 
of selection of facts that would comply with the obligation of the IA authority to con duct an evaluative 
assessment. Unless that predetermined rule of selection were a restatement of the general principles 
on the use of facts available identified by the jurisprudence, resorting to a predetermined rule of 
selection would hinder the investiga ting authority 's ability to evaluate and select those facts that are 
most appropriate in view of reaching an accurate determination in a particular investigation in light 
of all the relevant circumstances.  
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF JAPAN  
I. INTRODUCTION  
 
1. Japan focuses on the use of facts available under the Anti -Dumping Agreement and the 
SCM Agreement, and notably a core issue in dispute concerning the use of adverse facts available 
("AFA"). Japan clarifies that it does not take any specific positions on the factual aspects of the 
dispute , including whether the specific AFA determinations issued by the U.S. Department of 
Commerce in the re levant investigations are WTO -consistent or not .  
 
II. THE USE OF FACTS AVAILABLE  
 
2. Japan believes that any consideration of the proper interpretation and application of Article  6.8 
of the Anti -Dumping Agreement and Annex II therewith, as well as Article  12.7 of the 
SCM Agreement, must begin with the understanding that these provisions serve a limited purpose 
related to overcoming a lack of information necessary to a determination . In both contexts, "facts 
available " are a tool for investigating authoriti es to arrive at a "reasonable " and "accurate " 
determination, even when certain information may not be available.1 
 
3. Importantly, although there are slight textual differences between Article 6.8 of the Anti -
Dumping Agreement and Article 12.7 of the SCM Agreement, the Appellate Body has interpreted 
Article 12.7 of the SCM Agreement in a manner similar to Article 6.8 of the Anti -Dumping Agreement . 
Thus, to the extent Japan addresses text and previous cases in relation to Article 6.8 and Annex II 
of the Ant i-Dumping Agreement, or conversely Article 12.7 of the SCM Agreement, Japan 's 
comments should be interpreted as applying in both contexts .  
 
A. "Facts Available " Serve A Remedial, Not Punitive Function  
 
4. As reflected in both Article 6.8 / Annex II of the Anti -Dumping Agreement and Article 12.7 of 
the SCM Agreement, the provisions on "facts available " strike a balance between assuring 
investigating authorities ' access to necessary information (and thus enco uraging exporters and 
foreign producers ' cooperation) on the one hand, and ensuring that exporters and foreign producers 
are not treated unfairly or arbitrarily by investigating authorities on the other . To this end, there is 
perhaps no more important prin ciple to guide the Panel in this dispute than appreciating that the 
use of "facts available " is not a means to punitive action, but instead serves a remedial purpose to 
reasonably fill gaps in the record of an investigation .  
 
5. As a textual matter, none of the provisions at issue, whether Article 6.8 and, Annex II of the 
Anti-Dumping Agreement, or Article 12.7 of the SCM Agreement, refer to "adverse facts available " 
or "adverse inferences ".2 To the contrary, Paragraph 7 of Annex  II merely states that "if an interested 
party does not cooperate and thus relevant information is being withheld from the authorities, this 
situation could lead to a result which is less favourable to the party than if the party did cooperate ". 
This state ment expresses the obvious proposition that secondary sources of information that an 
authority may use in the event of non -cooperation could be less favorable to the respondent than 
information that would have been obtained from a cooperating party; it doe s not, however, permit 
the authority to use any information . As the panel in Korea – Certain Paper (Article 21.5 – Indonesia)  
 
1 See Appellate Body Report, US – Carbon Steel (India) , para. 4.416 and Appellate Body Report, 
Mexico  – Anti-Dumping Measures on Rice , para. 294.  
2 Japan acknowledges that Paragraphs 7 and 8 of Annex V to the SCM Agreement permits the use of 
"adverse inferences " when developing information concerning serious prejudice, but this discretion is expressly 
limited to panels, and reinforces the understanding that the drafters understood the difference between 
adverse inferences on the one hand, and facts available on the other. Had the drafters intended to provide 
Members recourse to adverse inferences in the context of anti -dumping and countervailing duty investigations 
more generally, they would have made that clear, as they did in Annex V for panels addressing issue s of 
serious prejudice.  WT/DS539/R/Add.1  
 
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  stated, Paragraph 7 "does not justify arbitrary selection of the data to be used in the place of the 
missing data ".3 
 
6. By exten sion, although Paragraph 7 recognizes that a non -cooperating respondent may be 
subject to determinations based on facts on the record that may be less favorable than the facts 
that the respondents would have submitted, it does not permit an investigating a uthority to engineer 
a punitive outcome that does not reasonably reflect an accurate margin calculation based on the 
available facts of the case . The panel in China – GOES  saw "no basis in Annex II for the drawing of 
adverse inferences ".4 Instead, "the pu rpose of  the facts available mechanism is not to punish non -
cooperation  by interested parties. ... . While non -cooperation triggers the use of facts available, non -
cooperation does not justify the drawing of adverse inferences ".5 Rather, as noted by the 
Appellate  Body in US – Carbon Steel (India) , "facts available " serves the sole purpose "of replacing 
information that may be missing, in order to arrive at an accurate …. determination ".6 
 
7. This discretionary authority to draw "adverse inferences ", however, is expressly limited to 
panels, and reinforces the understanding that the drafters understood the difference between 
"adverse inferences " on the one hand, and "facts available " on the othe r. The phrase "less 
favourable " in Paragraph 7 does not convey the same punitive character as "adverse ", and thus 
emphatically does not authorize inferences so extreme as to be "adverse ". Such textual provision 
should be given appropriate weight.  
 
8. In th is regard, even when the investigating authority adequately determines that an 
exporter/foreign producer is not cooperating and/or impeding the investigation, such a finding is not 
a basis to apply adverse inferences . Again, the use of facts available shou ld not be a punishment for 
non-cooperation . And while the Appellate Body has observed that Paragraph 1 of Annex II of the 
Anti-Dumping Agreement "suggests that the knowledge of a non -cooperating party of the 
consequences of failing to provide information c an be taken into account by an investigating 
authority ", it remains the case that "an investigating authority must nevertheless evaluate and 
reason which of the 'facts available ' reasonably replace the missing 'necessary information ', with a 
view to arrivi ng at an accurate determination ".7  
 
9. A case -by-case assessment would be required to determine whether an interested party 's 
conduct, offering information that the investigating authority rejects due to its untimeliness, can be 
treated as an instance of  "non-cooperation " and whether the investigating authority may 
consequently resort to the use of "facts available ". Factors such as the type and volume of 
information offered, the information already available to the investigating authority, or the 
communi cation that had occurred between the investigating authority and the interested party, as 
well as the actual untimeliness of the provision of the information should all be taken into 
consideration.  
 
10. In Japan 's view, the investigating authority would co nsider the nature and degree of an 
interested party 's non -cooperation when determining whether or not it can obtain necessary 
information from that interested party. If it can reasonably conclude that it cannot obtain necessary 
information from that party,  the investigating authority may resort to other facts available, following 
the set rules .  
 
11. Japan therefore submits that the Panel should carefully examine whether the investigating 
authority 's use of "facts available " was guided by adverse inferences (as distinguished from an 
adverse outcome) or by the reasonable replacement of necessary information with a view to arriving 
at an accurate determination . Only the reasonable replacement of necessary information with a vie w 
to arriving at an accurate determination is consistent with Article 6.8 and Annex II of the  
Anti-Dumping Agreement, and Article 12.7 of the SCM Agreement.  
 
 
3 Panel Report, Korea – Certain Paper (Article 21.5 – Indonesia) , para. 6.26.  
4 Panel Report, China – GOES,  para. 7.302.  
5 Ibid. (emphasis added) See  also Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.238;  
Panel Repo rt, China – Broiler Products, paras. 7.311 -7.312 (citing Panel Report, China – GOES , para. 7.302  
supra).  
6 Appellate Body Report, US – Carbon Steel (India) , para. 4.416.  
7 Appellate Body Report, US – Carbon Steel (India) , para. 4.426.  WT/DS539/R/Add.1  
 
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  B. "Necessary Information " 
 
12. Neither the Anti -Dumping Agreement nor the SCM Agreement define "necessary information ". 
But the Appellate Body has made clear that the term "necessary " in conjunction with "information " 
means that neither Article 6.8 of the Anti -Dumping Agreement nor Article 12.7 of the 
SCM Agreement is directed at just "any" informati on or "unnecessary " information, "but is rather 
concerned with overcoming the absence of information required to complete a determination ".8 In 
other words, necessary information is at least the one which would be required for investigating 
authorities to  complete or make a determination.  
 
13. Previous panels have further distinguished "necessary " information from that information that 
is merely requested or required by investigating authorities . Only the former permits use of "facts 
available ".9 To that end, any finding of fact that necessary information is missing must be undertaken 
in an objective and unbiased manner  and a reasoned and adequate explanation  is required.10 
 
14. More specifically, to resort to facts available permissibly, investi gating authorities must 
determine affirmatively that the respondent producers/exporters have in fact failed to provide 
necessary information . A finding by the investigating authority of what information is necessary to 
complete and make a determination may  differ depending on the circumstances of a particular case . 
But considering the purpose of Article 6.8 of the Anti -Dumping Agreement to "arrive at an 
accurate  ... determination ",11 Japan considers that investigating authorities are required to assure 
that they have examined whether there is sufficient basis for its application of "facts available ".  
 
15. The nature of such examination by the investigating authority is guided by Annex II of the 
Anti-Dumping Agreement . First, Paragraph 1 of Annex II, establ ished that the burden is first on the 
investigating authority to be clear what information it requires . Second, Paragraph 3 of Annex II 
establishes that whether and to what extent necessary information is lacking is dependent on 
whether information that is  provided can be verified and other conditions . Third, Paragraph 5 further 
clarifies that information may not be disregarded simply because it is not complete or imperfect 
where a party has acted to the best of its ability . In addition, Paragraph 6 refers to explanations by 
investigating authorities of the reasons that should be provided to respondents for refusing to accept 
evidence or information, and opportunities for respondents to provide further explanations.  
 
16. These provisions in Annex II undersc ore that the due process rights of interested parties are 
to be taken into account when considering resort to facts available . At the same time, Japan does 
not take the view that whether information is "necessary " should be strictly determined based on a 
single standard before resorting to facts available . The investigating authority has certain discretion 
about how to proceed with its investigation . The information that may be considered as "necessary " 
may differ, for example, depending on each Member 's domestic law for addressing certain issues or 
the type of information that is missing . But even though "necessity " of information may vary 
depending on the Member and the circumstances of a particular case, every Member must in every 
case respect the due process rights of the interested parties.  
 
17. In order to respect the due process rights of interested parties, t he interested parties should 
not simply self -determine what is "necessary " and dismiss the relevance of the required information . 
For example if the interested party insists that the required evidence is not necessary, despite the 
relevance of the informat ion that is objectively clear, the investigating authority may reasonably use 
facts available . On the other hand, if it is objectively clear that the requested information can be 
obtained by the investigating authority easily through its own sources, and i s not directly relevant 
to key issues in the investigation, then it could be unreasonable to disregard the burden of asking 
more detailed information or to find interested parties as "non-cooperative " and thus to resort to 
facts available .  
 
18. For a smoo th investigation process, it would be reasonable to expect reasonable 
communication between the investigating authority and the interested party. If the interested party 
decides to refrain from providing the requested information, based on its own determin ation that 
 
8 See Appellate Body Report, US – Carbon Steel (India) , para. 4.416.  
9 See Panel Report, Egypt – Steel Rebar , para. 7.155 and Panel Report, US – Supercalendered Paper , 
para. 7.174.  
10 See Panel Report, US – Supercalendered Paper , paras. 7.174 –7.177.  
11 Appellat e Body Report, US – Carbon Steel (India) , para. 4.416.  WT/DS539/R/Add.1  
 
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  the information is insufficiently relevant to be "necessary ", the investigating authority may 
reasonably resort to facts available if it is objectively clear the information is relevant.  
 
19. In short, a balance between the investigating authori ty's right to investigate and interested 
parties ' rights to due process should be taken into account within the investigation process . In this 
regard, Japan views that it  would be required to provide interested parties an "ample opportunity " 
to present suc h information, even at an advanced stage of the investigation . However, what would 
constitute an "ample opportunity " would depend on the factual situation within each individual 
investigation proceeding.  
 
20. Needless to say, and to avoid any doubts, what  constitutes "necessary information " should be 
determined objectively and an investigating authority must have sufficient basis to assert that the 
requested or required information is in fact necessary .  
 
21. In turn, this Panel must examine whether "the a uthorities ' establishment of the facts was 
proper and whether their evaluation of those facts was unbiased and objective ", as set out in 
Article  17.6(i) of the Anti -Dumping Agreement . This basic principle applies to the authorities ' 
determinations of what information is necessary.  
 
C. Selecting "Best Information Available " 
 
22. Annex II is incorporated by reference into Article 6.8.12 Annex II is titled "Best Information 
Available in Terms of Paragraph 8 of Article 6 ". Thus, the language in its title confirms that Annex II 
requires that the "facts available " ultimately applied by an investigating authority must be the "best" 
information available under the circumstances . "{E}ven where the investigating authority is unabl e 
to obtain the 'first-best' information as the basis of its decision, it will nonetheless base its decision 
on facts, albeit perhaps 'second -best' facts".13 
 
23. What information constitutes the "best" information available in a particular case will depe nd 
on the circumstances, including factors such as what information is missing . And while the manner 
of the evaluation to be undertaken by the investigating authority would be left to the investigating 
authority 's discretion, the Appellate Body has made cl ear that discretion is not a substitute for 
evaluation.  
 
24. This confirms that the use of "facts available " must take place within specific restraints 
requiring investigating authorities to reasonably replace missing information with a view to arriving 
at an accurate determination . The use of "facts available " starts with the premise that actual 
substantiated f acts are considered, and this pool of substantiated facts is evaluated to ensure the 
accuracy of any determination based on upon such facts .  
 
25. The panel 's finding in US – Supercalendered Paper  merely confirms panels ' views presented 
in previous cases concerning the use of arbitrary information to fill gaps in necessary information. 
Indeed, even in circumstances of non -cooperation, the use of "facts available " still requires "special 
circumspection " in the pursuit of a ccuracy, as reflected in Paragraph 7 of Annex II.14 
 
26. Japan therefore submits that the Panel should carefully examine whether the "facts available " 
used by the investigating authority reflect an evaluation, taking into consideration all substantiated 
facts available on the record to determine the "best" information for purposes of making an accurate 
determination. Japan does not necessarily consider that a "comparative evaluation of [all] 'evidence 
available '"15 is required in each and every case, but at least, the investigating authority should be 
able to explain, with sufficient basis, what evaluation it undertook. Any selection of arbitrary facts, 
or selection of facts without evaluating all facts on the record, would be inconsistent with Article 6.8  
and Annex II of the Anti -Dumping Agreement, and Article 12.7 of the SCM Agreement . Moreover, a 
failure to explain the evaluation process in selecting among facts available, or to do so post hoc, 
would be inconsistent with Article 12.8 of the SCM Agreement  and Article 6.9 of the Anti -
Dumping  Agreement.  
 
 
12 Appellate Body Report, US – Hot-Rolled Steel , para. 75.  
13 Panel Report , US – Hot-Rolled Steel , para. 7.55.  
14 Panel Report, Korea – Certain Paper (Article 21.5 -Indonesia) , para. 6.26.  
15 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 7.289.  WT/DS539/R/Add.1  
 
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  27. The steps to ensure the accuracy of the information being used will vary case -by-case. What 
information constitutes the "best" information available in a particular case will depend on the 
circumstances . The investigating authority has the discretion regarding the manner it takes to ensure 
the accuracy of the information . In any case, it is clear that such discretion is not a substitute for 
evaluating whether the information the investigating authority wi ll use is the "best" and that there 
is no better information available .  
 
28. Japan notes that although the investigating authority has discretion in determining what 
specific steps to take, at least, it should be able to explain, with sufficient basis, wh at evaluation it 
undertook. If the investigating authority uses information unchanged, without undertaking such a 
process and without explaining why it used such facts as the "best" information, the accuracy of 
such use may be questioned.  
 
29. In this rega rd, it cannot be determined whether having a "predetermined rule " is WTO 
consistent or not in the abstract but only through a case by case analysis. Additionally, the 
assessment will necessarily vary depending on the substance of such predetermined rules. If a 
predetermined rule of selection is applied to reach a predet ermined conclusion, such a rule may be 
WTO-inconsistent. On the other hand, if a predetermined rule of selection provides neutral guidance 
on how to reach the "best" information, setting out reasonable steps to examine the evidence being 
considered, it may  not necessarily be WTO -inconsistent. Whether a predetermined rule is mandatory 
or discretionary is not a decisive element in considering whether its application by the investigating 
authority complies with the obligation to conduct an evaluative assessmen t.  
 
 
 WT/DS539/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF MEXICO  
1. Mexico welcomes the opportunity to present its views in this dispute. In general, Mexico 
disagrees with certain arguments presented by the United States in section I of its first written 
submission.  
 
2. Among other things, the United States raises aspects related to  the jurisprudence of the 
dispute settlement system. The United States asserts that "a panel m ay refer to [prior 
Appellate  Body or panel] reasoning in conducting its own objective assessment of the matter. But 
considering an interpretation in a prior [ …] report is very different from a statement that the 
interpretation is controlling or 'precedent ' in a later dispute".1 
 
3. For the reasons set out below, Mexico considers that these assertions are incorrect and seek 
to minimize the role played by what is now called "jurisprudence".  
 
4. The interpretation of the United States implies that a panel ha s complete discretion whether 
or not to take account of precedents when they are applicable, thereby reducing their degree of 
importance and relevance. This interpretation means that it is totally at a panel's discretion whether 
or not to take into conside ration determinations made by the Dispute Settlement Body (DSB) since, 
according to the United States, even when these determinations have been found to be persuasive 
the panel is not obliged to consider them in its own analysis of the matter.  
 
5. Mexico i s of the view that this interpretation is somewhat radical and does not correspond 
closely to how dispute settlement system precedents function. Even though panels have a certain 
freedom to develop their interpretations, it is essential to take into accoun t that when the 
interpretation to be given to the matter concerned in a precedent -based legal system is left totally 
at the discretion of the judge or arbitrator, then by definition precedents are meaningless, and this 
has an adverse effect on predictabili ty. Such total discretion would negate any certainty regarding 
the results that might be expected.  
 
6. Given that existing precedents on the subject in WTO jurisprudence do not favour the 
United  States' position, we understand that its strategy involves se eking to persuade the panel that 
it has absolutely no obligation to consider the precedents that are perfectly applicable in this dispute, 
and that even if the panel takes them as the basis of its analysis, it would be failing to meet the 
obligations laid down in the Dispute Settlement Understanding (DSU) to make an objective 
assessment of the matter. However, Mexico considers that the importance of the predictability of 
the dispute settlement system greatly outweighs the interests of one of the parties to the dispute.  
 
7. Article 3.2 of the DSU makes it clear  that the dispute settlement system of the WTO is a 
"central element " in providing security and predictability  to the multilateral trading system. This is 
also reflected in Article 3.3, which states that "[t]he prompt settlement of situations […] is essential 
to the effective functioning of the WTO and the maintenance of a proper balance between the rights 
and obl igations of Members". Both provisions indicate the contribution  made by the dispute 
settlement system and hence its function  and its component parts  within the WTO framework.  
 
8. Article 3.2 refers to the recognition by Members of the preservation  of right s and obligations 
and the clarification of existing provisions . Security and predictability cannot exist if there is 
uncertainty over what Members' rights and obligations entail. Nor can there be security or 
predictability or any balance between rights and  obligations if there is no clarity  regarding their 
meaning. This same provision states that clarification of provisions is carried out in accordance with 
customary rules of interpretation of public international law . Hence it cannot be claimed that a 
dispute settlement system was created that seeks to provide security and predictability, the prompt 
settlement of disputes and the maintenance of the balance between the rights and obligations of 
 
1 United States' first written submission, p. 4, para. 19.  WT/DS539/R/Add.1  
 
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  Members, comprising panels and an Appellate Body, without its ul timate task entailing interpretative 
work.  
 
9. Choosing to refer in the text to customary rules of interpretation in the clarification of existing 
provisions reflects the understanding that the dispute settlement system entails interpretative work 
regardi ng the resolution of disputes, the meaning of commitments made, the applicability of 
agreements, the conformity of measures with those agreements, etc.  
 
10. With regard to precedents in the dispute settlement system, the United States' attempt to 
reduce the importance and applicability of precedents is contrary to the recognized role of those 
precedents. We observe that in US – Oil Country Tubular Goods Sunset  Reviews2, the Appellate Body 
determined that "following the [ …] conclusions in earlier disputes is not only appropriate, but is what 
would be expected from panels, especially where the issues are the same " (emphasis added).  
 
11. Furthermore, in US – Stainless Steel (Mexico),  the Appellate Body indicated that "[i]t is well 
settled that Appellate Body reports are not binding, except with respect to resolving the particular 
dispute between the parties. This, however, does not mean that subsequent panels are  free to 
disregard the legal interpretations and the ratio decidendi  contained in previous [ …] reports that 
have been adopted by the DSB ".3 
 
12. Moreover, in Japan – Alcoholic Beverages II , the Appellate Body determined that "[a]dopted 
panel reports are a n important part of the GATT acquis . They are often considered by subsequent 
panels. They create legitimate expectations among WTO Members, and, therefore, should be taken 
into account where they are relevant to any dispute ".4 
 
13. There are other dispute s in which both the panels and the Appellate Body have put forward 
arguments similar to those mentioned.5 It is not our intention to give an exhaustive account on this 
occasion but we wish to emphasize that no interpretation was undertaken in any of these  
determinations that was similar to the one set out by the United States in its first written submission. 
It suffices to compare the language of the United States' characterization with that used by the 
Appellate Body in the above -mentioned precedents, and  it is quite clear that the degree of discretion 
with regard to taking account of previous determinations is much less in the latter case, as shown 
below.  
 
14. In US – Stainless Steel (Mexico) , the Appellate Body determined that "the legal interpretation 
embodied in [adopted panel and Appellate Body] reports becomes part and parcel of the acquis  of 
the [WTO dispute settlement system]. Ensuring 'security and predictability ' in the [dispute 
settlement system], as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons , 
an adjudicatory body will resolve the same legal question in the same way in a subsequent case" 
(emphasis added).6 
 
15. The above finding expresses once again the expectation of resolving the same legal issues in 
the same way and also spells out that the only exception justifying resolution in a different way is 
the existence of "cogent reasons".  
 
16. In fact, Mexico considers the recent int erpretation in US – Differential Pricing Methodology  
(DS534) to be erroneous, where the panel merely stated in a single paragraph, without in -depth 
analysis, that "we have […] found convincing or cogent reasons to arrive at conclusions different 
from those  of the Appellate Body in US – Washing Machines as well as the panels in  US – Washing 
Machines and US – Anti-Dumping Methodologies (China) ".7 This action must not be repeated and 
we hope that it will be rectified on appeal.  
 
17. Furthermore, the United S tates indicates that the rules of interpretation of the 
Vienna  Convention "do not assign to interpretations given as part of dispute settlement a 
 
2 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews  (DS268), para. 188.  
3 Appellate Body Report, US – Stainless Steel (Mexico)  (DS344), para. 158 (emphasis added).  
4 Appellate Body Report, Japan – Alcoholic Beverages II , p. 14 (emphasis added).  
5 Appellate Body Report, (recourse to Article 21.5 of the DSU), US – Shrimp (DS58) , para. 107; 
Appellate Body Report, US – Continued Zeroing (DS350), para. 362; Panel Report, US – Countervailing and 
Anti-Dumping Measures (China)  (DS449), para. 7.315.  
6 Appellate Body Report, US – Stainless Steel (Mexico) (DS344), para. 160 (emphasis added) . 
7 Panel Report, US – Differential Pricing Methodology  (DS534), para. 7.107.  WT/DS539/R/Add.1  
 
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  precedential value for purposes of discerning the meaning of agreement text. A panel is not 
permitted under it s terms of reference as established by the DSB or under the DSU to ignore this 
task and instead simply treat prior panel or Appellate Body reports as binding 'precedent '".8 
 
18. In this regard, there are three aspects that we consider important:  
 
(a) In principle, under the terms of Article 3.2 of the DSU, the interpretations of panels and 
the Appellate Body must be based on the rules of interpretation of the 
Vienna  Convention, and it can be presumed that they comply with this characteristic, 
unless prove n otherwise. A single Member cannot designate itself as being the only one 
that can determine in which cases precedents should or should not be followed.  
 
(b) The United States' assertion does not make sense. The Vienna Convention does not 
state that the result of its implementation becomes a rule of interpretation, because 
this would not make sense. Precedents do not derive their value from being the result 
of application of an instrument but, since they result from the application of rules, they 
can be fully presumed to be applicable in similar cases. If the y are deliberately and 
dogmatically set aside, as suggested by the United States, this would constitute an 
implicit rejection of their having been created in accordance with the said rules , since 
there would otherwise be no reason to set them aside.  
 
(c) Its interpretation implies that whenever a panel or the Appellate Body settles a dispute, 
it should apply the rules of the Vienna Convention and reach an outcome without taking 
account of what it ha s concluded in previous cases, in which, precisely, the same 
instrument was applied. In this regard, if the conclusions of previous cases, which are 
based on the same instrument, are applied, we do not see how there could be any 
breach of the DSU rules.  
 
19. Moreover, the general rule of interpretation of treaties invoked by the United States provides, 
firstly, that "a treaty shall be interpreted in good faith". In a scenario where (i) multiple 
interpretations exist that concur on the meaning given to a par ticular provision; (ii) such 
interpretations comply with the general rule of interpretation of treaties; (iii) they have been issued 
by dispute settlement system bodies; (iv) they have been adopted by the DSB; and (v) no 
interpretation exists that has give n a contrary meaning, Mexico considers that a new interpretation 
that does not take account of these previous interpretations and, furthermore, is manifestly contrary 
to them cannot be considered as being "in good faith" but quite the opposite.  
 
20. The ai m of providing security and predictability to the multilateral trading system cannot be 
achieved if we, the Members, are the ones who undermine the effectiveness of the dispute 
settlement system, by belittling the previous determinations made by panels and  the Appellate Body 
which have been approved by the DSB.  
 
21. It is therefore an extremely serious matter that any Member should seek to disregard the 
interpretations given by the adjudicat ory bodies  of the dispute settlement system, interpretations 
which , ultimately, clarify and give concrete substance to the provisions of the covered agreements.  
 
22. Lastly, Mexico welcomes the opportunity to present its views on this dispute and expresses 
its full willingness to respond to any questions from the panel. I would also like to thank the 
interpreters for their work.   
 
 
 
 
8 United States' first written submission, p. 4.  WT/DS539/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF NORWAY  
1. INTRODUCTION  
 
1. Norway welcomes this opportunity to present its views as a third party in this case concerning 
a disagreement between the Republic of Korea (Korea) and the United States of America (the US), 
regarding the conformity with the covered agreements of anti -dumping and countervailin g duties 
imposed by the US on certain products and the use of facts available.  
 
2. Norway will not address all the legal issues upon which there is disagreement between the 
parties to the dispute in this third party submission. As a starting point, Norway would like to 
reiterate that anti -dumping investigations involve a process whereby an authority makes a series of 
factual and legal determinations. These determinations can adversely affect the position of interested 
parties, including through the impositi on of anti -dumping duties. In order to protect the interests of 
interested parties, the Anti-Dumping Agreement (ADA) requires the investigating authority to 
conduct its investigation, collect information and make its determinations in accordance with certa in 
minimum standards of procedural justice and fairness. Norway attaches great importance to these 
procedural rules, as vital safeguard mechanisms for transparency and the rule of law.  
 
3. One of the principles governing anti -dumping investigations is the goal of objective decision -
making based on facts. Article 6.8 and Annex II aim to uphold that principle in the event that 
necessary information is not provided by the respondent company to an investigation. In this 
third party submission, Norway will comme nt on the interpretation of "necessary information " and 
the duty of cooperation in the ADA Article 6.8 and Annex II.  
 
2. INTERPRETATION OF THE ADA ARTICLE 6.8 AND ANNEX II  
 
2.1 Introduction  
 
4. The ADA Article 6.8 reads:  
 
"In cases in which any interested party refuses access to, or otherwise does not provide, 
necessary information within a reasonable period or significantly impedes the 
investigation, preliminary and final determinations, affirmative or negative, may be 
made on the basis of the f acts available . The provisions of Annex  II shall be observed 
in the application of this paragraph. " 
5. The last sentence of paragraph 7 of Annex II states that:  
 
"It is clear, however, that if an interested party does not cooperate and thus relevant 
inform ation is being withheld from the authorities, this situation could lead to a result 
which is less favourable to the party than if the party did cooperate. " 
6. In its first written submission, Korea holds that a failure by a company to provide requested 
information to the investigating authority because it did not have control over a separate legal entity, 
does not in itself mean that the company failed to provide "necessary information " in the meaning 
of the ADA Article 6.8.1 The US, on the other hand, cla ims that legal separation is not the issue, but 
rather whether two legally distinct companies are affiliated. The US refers to the companies in 
question as being "affiliated parties via control by a 'group ', which has the ability to directly or 
indirectly control its group members ".2 Korea claims that the US has not explained how a group 
member  has the ability to control other group members.3 
 
1 Korea's First Written Submission, para. 263.  
2 US' First Written Submission , para. 156.  
3 Korea's First Written Submission, para. 259.  WT/DS539/R/Add.1  
 
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  7. Whilst not taking a stand in the dispute at hand, Norway would like to comment on the 
interpretation of "necess ary information " and the duty of cooperation in the context of affiliated 
companies.  
 
2.2 "Necessary information " and the duty of cooperation  
 
8. Several panels and the Appellate Body have interpreted the term "necessary information " in 
the ADA. It is clear that "necessary information " refers to information which is relevant to the 
determination to be made by the investigating authority.4 Moreover, it is, in the first instance, left 
to the discretion of the investigating authority to  determine what information it deems necessary for 
the conduct of its investigation.5 The provisions of Annex II "shall be observed " in the application of 
Article 6.8. They are mandatory.6 
 
9. In Norway' s view, Annex II informs the interpretation of the obligation to provide "necessary 
information " in the context of affiliated companies. The Appellate Body addressed this subject in its 
report in US – Hot-Rolled Steel . In this case, the Appellate Body assessed the situation where a 
company that was 50% own ed by the respondent company, in a joint venture with a third company, 
did not provide the information the investigating authority asked for. In paragraph 99, the 
Appellate  Body stated that:  
 
"Paragraph 7 of Annex II indicates that a lack of 'cooperation ' by an interested party 
may, by virtue of the use made of facts available, lead to a result that is 'less favourable 
to the interested party than would have been the case had that interested party 
cooperated. We note that the Panel referred to the following  dictionary meaning of 
'cooperate: to 'work together for the same purpose or in the same task. ' This meaning 
suggests that cooperation is a process , involving joint effort, whereby parties work 
together towards a common goal. In that respect, we note that parties may very well 
'cooperate ' to a high degree, even though the requested information is, ultimately, not 
obtained . This is because the fact of 'cooperating ' is in itself not determinative of the 
end result of the cooperation. Thus, investigating autho rities should not arrive at a 'less 
favourable ' outcome simply because an interested party fails to furnish requested 
information if, in fact, the interested party has 'cooperated ' with the investigating 
authorities, within the meaning of paragraph 7 of Annex II of the  
Anti-Dumping Agreement ". (emphasis original, underlining added, footnotes omitted)  
10. The Appellate Body further, in paragraph 102, underlined that:  
 
"We, therefore, see paragraphs 2 and 5 of Annex II of the Anti-Dumping Agreement  as 
reflecting a careful balance between the interests of investigating authorities and 
exporters. In order to complete their investigations, investigating authorities are 
entitled to expect a very significant degree of effort – to the 'best of their abilities ' – 
from investigated exporters. At the same time, however, the investigating authorities 
are not entitled to insist upon absolute  standards or impose unreasonable  burdens u pon 
those exporters ." (emphasis original, underlining added)  
11. Thus, it is already established case law that the investigating authorities cannot insist on 
absolute standards or impose unreasonable burdens upon respondent companies. This must, in 
Norway' s view, be taken into account by investigating authorities when they require information 
relating to affiliated companies.  
 
12. There are a number of different ways that companies can be affiliated and company law may 
vary in the national law of WTO Membe rs. Thus, whilst bearing in mind the very high standard of 
cooperation expected from respondent companies, the investigating authority must have a 
sensitivity to the fact that a respondent company may still not be able to provide every piece of 
information  requested from an affiliated company. An investigating authority may not demand that 
 
4 Panel Report, US – Steel Plate,  para. 7.55, Appellate Body Report, US – Carbon Steel (I ndia), 
para. 4.416.  
5 Panel Report, Egypt  – Steel Rebar , para. 7.155.  
6 Panel report, US – Steel Plate , para. 7.56 WT/DS539/R/Add.1  
 
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  a respondent company has "exhausted all legal means at its disposal to compel [an affiliated 
company] to divulge the requested information, within the short time -limits o f the investigation ".7 
 
13. At the same time, it must be recalled that the investigating authority itself also has an 
obligation to cooperate with the respondent company. Cooperation is a two -way process involving a 
joint effort, cf. also the ADA Article 6.13, after which the investigating authority "shall take due 
account of any difficulties experienced " by respondent companies and "provide any assistance 
practicable ". Article 6.13 thus entails that an investigating authority cannot disregard difficulties  that 
a respondent company has, e.g. in providing the requested information, and it also obliges the 
investigating authority to assist the respondent company. Moreover, there is nothing in the ADA 
preventing an investigating authority from asking an affili ated company of a respondent party 
directly for information.8 The efforts of the investigating authority is to be taken into account, on a 
case by case basis, as a part of the circumstances under which the responent company 's cooperation 
in the sense of p aragraph 7 of Annex II is assessed.9 
 
14. In sum, it is Norway 's view that if the standard of cooperation in paragraph 7 of Annex II is 
met, an investigating authority may not conclude that "necessary information " has not been 
provided,10 even if, in the  end, the requested information is not provided. Accordingly, the ADA 
Article 6.8 would not allow the investigating authority to make determinations on the basis of the 
facts available in such a situation.  
 
3. CONCLUSION  
 
15. Norway respectfully requests the Panel to take account of the considerations set out above in 
interpreting the relevant provisions of the covered agreements.  
 
 
__________  
 
7 Appellate Body Report, US – Hot-Rolled  Steel, para. 108.  
8 Appellate Body Report, US – Hot-Rolled  Steel, para. 106.  
9 Appellate Body Report, US – Hot-Rolled  Steel, paras. 105 -109. 
10 Panel Report, US – Steel Plate , para. 7.55.